Masias v. Sec'y of Health

• Citation: 634 F.3d 1283
• Decision Date: 01 June 2011
• Docket Number: No. 2010–5077.,2010–5077.
• Parties: Donald R. MASIAS, Petitioner–Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

634 F.3d 1283

Donald R. MASIAS, Petitioner–Appellant,

v.SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent–Appellee.

No. 2010–5077.

United States Court of Appeals, Federal Circuit.

March 15, 2011.Rehearing and Rehearing En Banc Denied June 1, 2011.

Robert T. Moxley, Robert T. Moxley, P.C., of Cheyenne, WY, argued for petitioner-appellant.Catharine E. Reeves, Assistant Director, Torts Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General, Timothy P. Garren, Director, Mark W. Rogers, Deputy Director, and Gabrielle M. Fielding, Assistant Director.Before BRYSON, SCHALL, and PROST, Circuit Judges.SCHALL, Circuit Judge.

This case involves a dispute over the proper calculation and award of attorneys' fees under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa–10 to –34 (2000) (“Vaccine Act” or “Act”). The Vaccine Act established the National Vaccine Injury Compensation Program (“Vaccine Program” or “Program”). Petitioner–Appellant Donald R. Masias (“Masias” or “petitioner”) sought compensation under the Vaccine Program, alleging that he sustained injuries as a result of the administration of Hepatitis B vaccines. Ultimately, Masias's claim was resolved through a negotiated settlement which resulted in a payment to Masias without any determination by the special master on the issue of causation. Judgment was entered accordingly on February 1, 2008.

In due course, Masias filed a claim for attorneys' fees under the Act. Subsequently, on March 12, 2009, the special master issued a Decision on Interim Attorneys' Fees and Costs, awarding Masias $42,065.50 in attorneys' fees and $6,302.15 in costs for the merits phase of the litigation, amounts that the special master determined were not reasonably in dispute. Masias v. Sec'y of Health & Human Servs., No. 99–697V, 2009 WL 899703, at *1 (Fed.Cl. Mar. 12, 2009) (“ Interim Decision ”). This resulted in an interim award of attorneys' fees and costs in the total amount of $48,367.65, with judgment being entered accordingly. Id. at *5. The special master deferred until his final decision resolution of the remaining fees and costs issues in the case. Id. at *3. Most important among these was the hourly rate for work performed by Masias's attorney, Robert T. Moxley. Id. ¹

On June 12, 2009, the special master issued his final Decision on Attorneys' Fees and Costs. Masias v. Sec'y of Health & Human Servs., No. 99–697, 2009 WL 1838979 (Fed.Cl. June 12, 2009) (“ Fees Decision ”). In it, he awarded Masias an additional $19,035.25 in attorneys' fees and an additional $14,873.32 in costs. Id. at *43. This resulted in a final award of attorneys' fees and costs in the total amount of $33,908.57 beyond what Masias already had been awarded in the Interim Decision.² The award of attorneys' fees in the Fees Decision was based, in part, on the special master's determination that Mr. Moxley was entitled to be compensated for his services in 2008 at an hourly rate of $220. Id. at *12.

Masias timely filed a motion for review of the special master's decision with the United States Court of Federal Claims. On December 10, 2009, the court denied the motion for review and affirmed the special master's decision. Masias v. Sec'y of Health & Human Servs., No. 99–697V, slip op. at 11 (Fed.Cl. Dec. 10, 2009). Shortly thereafter, the court entered judgment in favor of Masias in the amount of $33,908.57, the amount for fees and costs that the special master found to be due in the Fees Decision. Masias now appeals the decision of the Court of Federal Claims denying his motion for review. We affirm.

Background

I.

The Vaccine Act authorizes special masters to issue decisions with respect to “whether compensation is to be provided under the [Vaccine] Program and the amount of such compensation.” 42 U.S.C. § 300aa–12(d)(3)(A). When, as here, “compensation” is awarded under the Act for a vaccine-related injury or death, the petitioner is entitled to receive “reasonable attorneys' fees” and other costs. 42 U.S.C. § 300aa–15(e)(1). In addition, unlike most fee-shifting statutes, even if the petitioner is not awarded “compensation” under the Act, reasonable attorneys' fees and other costs may be awarded if the special master or the court determines that the petition was brought “in good faith” and that there was a “reasonable basis” for the claim. See id. ³ Because Masias was awarded compensation for his vaccine injury, there is no dispute that the special master was required to award attorneys' fees and costs in this case.

II.

To determine the attorneys' fees due to Masias, the special master began with the lodestar approach. We have endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347–48 (Fed.Cir.2008). Under this approach, the court first makes an initial estimate of a reasonable attorneys' fee by “ ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’ ” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The court can then adjust the fee award upward or downward based on other specific findings. Avera, 515 F.3d at 1348.

In Avera, we held that, in general, attorneys' fees under the Vaccine Act should be determined using the forum rate for the District of Columbia in the lodestar calculation, rather than the rate in the geographic area of the petitioner's attorney. Id. at 1348–49. However, we adopted an exception to this rule established by the D.C. Circuit in Davis County Solid Waste Management & Energy Recovery Special Service District v. United States Environmental Protection Agency, 169 F.3d 755, 758 (D.C.Cir.1999). Avera, 515 F.3d at 1349–50. According to the Davis County exception, also referred to as the Davis exception, the court should use the rates of the attorney's locality “ ‘where the bulk of [an attorney's] work is done outside the jurisdiction of the court and where there is a very significant difference in compensation favoring D.C.’ ” Avera, 515 F.3d at 1349 (quoting Davis County, 169 F.3d at 758).

To decide if the Davis County exception applied in this case, the special master first sought to determine the hourly rate for attorneys in Cheyenne, Wyoming, where Mr. Moxley practices. After reviewing several attorney affidavits and statements in various federal and state court decisions with respect to reasonable rates for attorneys in Wyoming, the special master found that the local rate for Mr. Moxley's services was $160 per hour for 1999, increasing proportionately through 2008 to $220 per hour. Fees Decision, 2009 WL 1838979, at *12–13, *31, app. tbl. 6. The special master then determined that attorneys with similar experience providing services in the Vaccine Program in Washington, D.C. would charge $250 to $375 per hour, and that, within this range, Mr. Moxley would likely receive $350 per hour if he practiced in Washington, D.C. Id. at *23–25. In arriving at this D.C. rate, the special master rejected Masias's argument that the Laffey Matrix, a matrix of different hourly rates in Washington, D.C., should apply. Fees Decision, at *13–15, *16–25 (citing Laffey v. Nw. Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4 (D.C.Cir.1984) overruled by Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C.Cir.1988) (“We do not intend, by this remand, to diminish the value of the fee schedule compiled by the District Court in Laffey.”)). Although noting that many courts have awarded attorneys' fees based on the Laffey Matrix, the special master found he was not bound to follow the matrix since Masias did not establish that Mr. Moxley provided services “similar” to attorneys under the Laffey Matrix, as required by Blum. Fees Decision, 2009 WL 1838979, at *16–25; see Avera, 515 F.3d at 1348 (“In Blum, the Supreme Court explained that a reasonable hourly rate is ‘the prevailing market rate,’ defined as the rate ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ”(quoting Blum, 465 U.S. at 896 n. 11, 104 S.Ct. 1541)).

After calculating that there was a 59 percent differential between the rates for “similar” legal services in Cheyenne, Wyoming and the appropriate forum, the District of Columbia, the special master found this difference to be “very significant.” Fees Decision, 2009 WL 1838979, at *26. The special master also found that there was no evidence that Mr. Moxley performed any work on the case within the District of Columbia. Id. at *25. Having found the two requirements of the Davis County exception met, the special master awarded Masias attorneys fees for Mr. Moxley's services at the Cheyenne, Wyoming rate of $160 to $220 per hour. Id. at *31.

Since the Interim Decision had addressed the fees due to Masias for time spent by Mr. Moxley on the merits phase of the case, using rates identical to those deemed to be reasonable rates in the Fees Decision, the only fees to which Masias still could be entitled were for Mr. Moxley's work seeking attorneys' fees. Id. at *32–35. Noting that the rates he had found applicable were approximately 50 percent of the rates requested by Masias, the special master calculated the fees due by reducing the total amount of the request by 50 percent to arrive at the amount of $19,035.25.⁴ Id. at *35.

A petitioner can request review of a special master's decision by the Court of Federal Claims under 42 U.S.C. § 300aa–12(e). As noted above, Masias's request for review was denied and the opinion of the special master affirmed. Masias then appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) and 42 U.S.C. § 300aa–12(f).

Discussion

Under the Vaccine Act, we...