John E. Mancini, to the use of JOSHUA T. GILLELAN II v. DAN P. PLUTE, INC., doing business as PROCUREMENT SERVICES ASSOCIATES

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN E. MANCINI, to the use of
JOSHUA T. GILLELAN II,
Petitioner,
v.
DAN P. PLUTE, INC., doing business as
PROCUREMENT SERVICES
ASSOCIATES, and DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR
Respondents.
No. 08-72537
B.R.B. No. 07-0187
MEMORANDUM *
On Petition for Review of an Order of the
Benefits Review Board
Submitted November 6, 2009 **
San Francisco, California
FILED
DEC 07 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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*** The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
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Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, *** District
Judge.
John E. Mancini, solely for the benefit of his attorney, Joshua T. Gillelan II,
petitions for review of an order of the Benefits Review Board (the “Board”),
which, pursuant to § 28(a) of the Longshore and Harbor Workers’ Compensation
Act (“LHWCA”), 33 U.S.C. § 928(a), awarded attorney’s fees to Gillelan against
Dan P. Plute, Inc. (“Plute”) for the successful representation of Mancini at an
hourly rate of $250.00. Gillelan contends that the requested rate of $435.00 per
hour is a reasonable market rate for comparable services by attorneys of
comparable experience and expertise in Washington, D.C., the city where Gillelan
practices and where the Board is located. It is our decision that the order must be
vacated and the matter remanded.
We review the Board’s decision for substantial evidence and errors of law.
Van Skike v. Dir., OWCP, 557 F.3d 1041, 1045 (9th Cir. 2009). Because the Board
is not a policymaking agency, no special deference is accorded to its interpretation
of the LHWCA. Id.; McDonald v. Dir., OWCP, 897 F.2d 1510, 1512 (9th Cir.
1990).

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Counsel for the prevailing party is to be awarded “reasonable [attorney’s]
fees” as typically “calculated according to the prevailing market rates in the
relevant community, regardless of whether plaintiff is represented by private or
nonprofit counsel.” Blum v. Stenson, 465 U.S. 886, 895 (1984) (involving claims
under 42 U.S.C. § 1988); see Van Skike, 557 F.3d at 1046. In this circuit, the
“relevant legal community” is the litigation forum. See Christensen v. Stevedoring
Servs. of Am., 557 F.3d 1049, 1053 (9th Cir. 2009). Here, Gillelan represented
Mancini before the Board in Washington, D.C. Gillelan’s law office is also located
in Washington, D.C. See 20 C.F.R. § 802.203(d)(4) (“The rate awarded by the
Board shall be based on what is reasonable and customary in the area where the
services were rendered for a person of that particular professional status.”)
Nevertheless, strict application of the “forum rule” may sometimes yield
unreasonable results, so “rates outside the forum may be used if local counsel was
unavailable, either because they are unwilling or unable to perform because they
lack the degree of experience, expertise, or specialization required to handle
properly the case.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir.
2008). Therefore, if the Board determines the forum to be in a location other than
Washington, D.C., the Board should consider whether it was necessary for Mancini

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to resort to the national market, including Washington, D.C., to find adequate
representation for Plute’s original appeal.
In defining “relevant community” when reviewing Gillelan’s fee application,
the Board looked solely at other awards issued by ALJs, Directors, and the Board
in prior LHWCA decisions. This narrow definition of “relevant community” is
inappropriate, because there is no private market for attorney’s fees under the
LHWCA, as LHWCA attorneys cannot negotiate or enter into fee agreements with
their clients. See 33 U.S.C. § 928(e); Christensen, 557 F.3d at 1053. Therefore, it
is necessary to define the “relevant community” more broadly than only the
LHWCA bar.
In addition to the exclusive reliance on past LHWCA cases to define
“relevant community,” Gillelan contends that the Board erred by defining the
market rate solely in terms of what ALJs, Directors, and the Board awarded fee
applicants in prior cases. In the Ninth Circuit, an award of attorney’s fees based
solely on past fee awards is considered unreasonable, because “holding the line” at
a flat rate does not define the relevant “market rate.” See Christensen, 557 F.3d at
1053; Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008); see also
Student Pub. Interest Research Group of N.J. v. AT&T Bell Labs., 842 F.2d 1436,
1446 (3d Cir. 1988).

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In determining the market rate for a prevailing attorney, one must look to
what private attorneys of comparable ability and reputation charge their paying
clients for work of similar complexity. See Blum, 465 U.S. at 895 & n.11. Once
the prevailing attorney offers evidence of a market rate, there is a presumption of
reasonableness, and the court may not reduce that rate without explaining the basis
for its decision. See Christensen, 557 F.3d at 1054-55.
Here, Gillelan introduced sufficient evidence, by reference to the Laffey
matrix, to demonstrate that the requested hourly rate of $435 was reasonable in
Washington, D.C. for attorneys at the highest experience level (i.e., more than
nineteen years). The Board approved an hourly rate of $250 only by considering
prior awards but failed to provide support for its findings. See Christensen, 557
F.3d at 1055. The Board wrongly disregarded the evidence submitted by Gillelan
and made no attempt to determine what comparable attorneys in Washington, D.C.
charged for similar services.
Regarding fee liability, the Board held in its order on the merits that Plute
“was wholly absolved of liability” and “no longer ‘adversely affected or aggrieved’
by the [ALJ]’s initial decision” regarding the underlying compensation award. For
this reason, Plute did not initially rebut Gillelan’s request for attorney’s fees at an
hourly rate of $435. Yet the “employer” Plute was ordered to pay the fee. Plute

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should have filed a cross-appeal to properly bring this issue before us, rather than
raise the issue solely in its opposition papers, as Plute cannot seek redress on
Gillelan’s appeal. See F ED. R. APP. P. 3(a). We suggest the Board read its decision
addressing the merits of the compensation claim before ordering that attorney’s
fees be paid directly by “employer” Plute. This panel cannot address the issue of
whether Plute or Perini has the ultimate fee liability, but this is an issue that the
Board may want to consider on remand.
VACATED and REMANDED to the Board for further consideration in accordance
with this opinion.

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