Case Law

Date Decided: November 6^th, 2009

Originally Filed in: Washington (Federal)

Decided by: U.S. Court of Appeals, Ninth Circuit (Federal)

Court: U.S. Court of Appeals for the Ninth Circuit

Judge: Judge Noonan

Citation: 2009 WL 4912140 (9th Cir. 2009)

Background:
John E. Mancini, solely for the benefit of his attorney, petitions for review of an order of the Benefits Reviewa Board ("The Board") which, under the Longshore Harboer Workers' Compensation Act, LHWCA, awarded attorneys fees at the hourly rate of $250.00.

Mancini's attorney contended 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.

Issues:
Did the lower court err in awarding plaintiff's counsel an hourly rate of $250.00 per hour opposed to the requested hourly rate of $435.00 per hour?

Held:
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.

The Board can use rates outside the forum 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 the case properly.

In order to consider another market, the Board should have considered whether it was necessary for Mancini to find counsel in the national market, outside of DC.

This Court also found that the Board incorrectly relied upon other cases brought under the LHWCA in the jurisdiction in determining the fee. The Court notes this is incorrect because there is no private market for attorney's fees under the LHWCA because LHWCA attorneys cannot negotiate or enter into fee agreements with clients.

This Court found that Mancini's counsel introduced sufficient evidence that the $435.00 rate was reasonable in Washington D.C. for attorneys at the highest experience level.

Accordingly this Court vacated the district court's decision and remanded the issue for further proceedings.

Comments:
Under §928(a), of the LHWCA,  the attorney of successful claimant is entitled to attorney's fees if the employer declines to pay any compensation. Moreover, an employee may be entitled to fees under §928(b) if, after an informal conference,

• The employer rejects the recommendations of the Board or the commissioner
• The employer tenders an amount in lieu of the recommendation (lower than what's recommended)
• He employee rejects the amount tendered by the employer
• The employee hires an attorney - and
• Employee obtains an amount greater than the amount tendered.

Employers may avoid fees under §928(b) by (1) Accepting the Board's recommendations or (2) refusing those recommendations but tendering a payment accepted by the claimant.