United States Court of Appeals
for the Federal Circuit
__________________________
GABRIEL G. RODRIGUEZ, AS ADMINISTRATOR OF THE
ESTATE OF
GIAVANNA MARIA RODRIGUEZ FOR THE BENEFIT
OF
GABRIEL GENE RODRIGUEZ AND JENNIFER ANN
RODRIGUEZ,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
__________________________
2010-5093
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 06-VV-559, Judge Margaret M.
Sweeney.
___________________________
Decided: February 9, 2011
___________________________
GILBERT GAYNOR, Law Office of Gilbert Gaynor, of
Santa Barbara, California, argued for petitioners-
appellants. With him on the brief was JOHN FRANCIS
MCHUGH, Attorney at Law, of New York, New York.
RODRIGUEZ v. HHS 2
DARRYL R. WISHARD, Trial Attorney, Torts Branch,
Civil Division, United States Department of Justice, of
Washington, DC, argued for respondent-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, TIMOTHY P. GARREN, Director, MARK W. ROGERS,
Deputy Director, CATHARINE E. REEVES, Assistant Direc-
tor.
SHELIA A. BJORKLUND, Lommen, Abdo, Cole, King &
Stageberg, P.A., of Minneapolis, Minnesota for amicus
curiae Bar Association.
__________________________
Before RADER, Chief Judge, LOURIE, Circuit Judge, and
WHYTE, District Judge. ∗
WHYTE, District Judge.
This case involves a dispute over the reasonable
hourly rate used to calculate attorneys' fees awarded
under the National Childhood Vaccine Injury Act of 1986,
42 U.S.C. §§ 300aa-1 to -43 ("Vaccine Act"), as amended.
Petitioner Gabriel Rodriguez appeals from a decision of
the United States Court of Federal Claims, which af-
firmed the decision by a special master awarding fees
based on evidence of the reasonable hourly rates of Vac-
cine Act practitioners in the forum, rather than accepting
the Laffey Matrix as prima facie evidence of the forum
rate. This appeal followed. We affirm.
∗
The Honorable Ronald M. Whyte, United States
District Court for the Northern District of California,
sitting by designation.
3 RODRIGUEZ v. HHS
BACKGROUND
On July 31, 2006, Gabriel Rodriguez filed a petition
for compensation under the Vaccine Act alleging that his
infant daughter Giavanna Rodriguez had suffered from
encephalopathy and died as result of receiving a vaccina-
tion. The special master conducted an entitlement hear-
ing and ordered respondent Secretary of Health and
Human Services to show cause why she should not find
that Giavanna suffered from an encephalopathy table
injury claim entitling her estate to compensation. See
Walther v. Sec'y of Health & Human Servs., 485 F.3d
1146, 1149 (Fed. Cir. 2007) (describing table injury
claims). As a result, the parties negotiated a settlement
that was memorialized on November 27, 2007.
On February 28, 2008, petitioner filed an initial appli-
cation for an award of attorneys' fees and costs pursuant
to 42 U.S.C. § 300aa-15(e)(1), requesting, among other
things, $65,925 in fees for his attorney, John McHugh, a
solo practitioner in New York City. Petitioner initially
requested that McHugh be compensated at an hourly rate
of $450 but later amended his request to increase
McHugh’s hourly rate to $598 for work performed in May
2006, $614 for work performed between June 2006 and
May 2007, and $645 for work performed after May 2007—
increasing the total requested to $94,642.
The special master directed the parties to file "addi-
tional evidence focused on the negotiated hourly rates for
attorneys of Mr. McHugh's skill, experience, and reputa-
tion; fees paid to attorneys in the Washington, DC area;
and argument to assist in determining the relevant legal
community for purposes to determining the forum rate for
attorneys' fees." After the parties responded to the spe-
cial master's order, petitioner filed a supplemental fee
application, requesting $10,395 in fees incurred for ser-
RODRIGUEZ v. HHS 4
vices of Gilbert Gaynor, a California attorney retained by
McHugh to respond to the special master's July 17, 2008
order, at an hourly rate of $450 for 2008 and $475 for
2009.
The special master rejected petitioner's claim that the
District of Columbia Laffey Matrix, a schedule of rates
maintained by the Department of Justice to compensate
attorneys prevailing in "complex federal litigation," sets a
prima facie forum rate schedule for Vaccine Act attorneys'
fees. 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 Cumber-
land 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. Indeed, we commend its use for the year to which
it applies."). Instead, to determine the forum rate, the
special master analyzed the following evidence: (1) infor-
mation concerning the negotiated hourly rate of the one
Vaccine Act attorney who provides the bulk of his services
within the District of Columbia; (2) an order in another
case directing respondent to show cause why petitioner's
counsel, an experienced tort attorney and senior partner
at a Washington, DC law firm, should not receive fees
based on a $300 hourly rate for work performed between
2001 and 2003; (3) a cost of living index supplied by
petitioner; (4) information about a nationwide sample of
law firm billing rates supplied by petitioner, (5) the Laffey
Matrix and adjusted Laffey Matrix, and (6) rates charged
and received by other attorneys handling Vaccine Act
cases, including those negotiated by small firms in Bos-
ton, Massachusetts and Vienna, Virginia. The special
master reduced the hourly rate requested by petitioner for
McHugh's services to $310 for 2006, $320 for 2007, and
5 RODRIGUEZ v. HHS
$335 for 2009. She also reduced the hourly rate for
Gaynor's services to $270 for 2008 and $275 for 2009.
Petitioner timely sought review in the Court of Fed-
eral Claims. On January 22, 2010, the Court of Federal
Claims issued its decision affirming the decision of the
special master. Petitioner timely filed a notice of appeal.
We have jurisdiction pursuant to 42 U.S.C. § 300aa-12(f).
DISCUSSION
Under the Vaccine Act, this court reviews a decision
of the special master under the same standard as the
Court of Federal Claims and determines if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." Avera v. Sec'y of HHS, 515 F.3d
1343, 1347 (Fed. Cir. 2008). "Arbitrary and capricious" is
a highly deferential standard of review: "[i]f the special
master has considered the relevant evidence of record,
drawn plausible inferences and articulated a rational
basis for the decision, reversible error will be extremely
difficult to demonstrate." Hines v. Sec'y of HHS, 940 F.2d
1518, 1528 (Fed. Cir. 1991). "Not in accordance with the
law" refers to the application of the wrong legal standard,
and the application of the law is reviewed de novo. See
Markovich v. Sec'y of HHS, 477 F. 3d 1353, 1356 (Fed.
Cir. 2007).
I
Under the Vaccine Act, a special master who has
awarded a petitioner compensation on a vaccine-related
claim "shall also award as part of such compensation an
amount to cover . . . reasonable attorneys' fees." 42 U.S.C.
§ 300aa-15(e)(1). We have endorsed the use of the lode-
star approach to determine what constitutes "reasonable
RODRIGUEZ v. HHS 6
attorneys' fees" under the Vaccine Act, which requires
that the court make an initial estimate of reasonable fees
by "multiplying the number of hours reasonably expended
on the litigation times a reasonable hourly rate," and then
adjust the product upward or downward based on other
specific findings. Blum v. Stenson, 465 U.S. 886, 888
(1984).
In Avera v. Sec'y of HHS, 515 F.3d 1343 (Fed. Cir.
2008), we held that attorneys' fees under the Vaccine Act
should in general 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 practice
of petitioner's attorney. Id. at 1349. In Avera, we went
on to apply a limited exception to the forum rule where
the bulk of the attorney's work is done outside the forum
jurisdiction, and where there is a very significant differ-
ence in the compensation rate between the place where
the work was done and the forum. Id. at 1349-1350
(citing Davis County Solid Waste Mgmt. & Energy Recov-
ery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.
3d 755 (D.C. Cir. 1999)). We, therefore, expressly did not
reach the question of "whether the so-called Laffey Matrix
should play any role in the determination of fees under
the Vaccine Act in those cases where forum rates are
utilized." Id. at 1350.
The issue presented in this appeal is whether the rea-
sonable hourly rate for attorneys handling Vaccine Act
cases in the District of Columbia should be determined by
applying the Laffey Matrix, or whether the rate should be
determined by considering a variety of factors, which may
or may not include the Laffey Matrix.
Petitioner sought attorneys' fees based on the Laffey
Matrix or Adjusted Laffey Matrix. Both the Laffey Matrix
7 RODRIGUEZ v. HHS
and the Adjusted Laffey Matrix are prepared by the U.S.
Attorney's Office for the District of Columbia and include
a chart of hourly rates for attorneys based on the number
of years in practice. Petitioner contends that the Laffey
Matrix or Adjusted Laffey Matrix provided prima facie
evidence of the forum rate for Vaccine Act cases, that the
special master incorrectly distinguished the litigation to
which the matrices have been applied from Vaccine Act
litigation, and that the special master improperly distin-
guished the Vaccine Act from other fee-shifting statutes.
He further argues that there are strong policy rationales
for using the Laffey and Adjusted Laffey matrices.
In Laffey, the District Court for the District of Colum-
bia approved a schedule of "the prevailing rates in the
community for lawyers of comparable skill, expertise and
reputation in complex federal litigation." 572 F. Supp. at
371-75. The court explained that the Title VII employ-
ment discrimination case brought on behalf of 3,300 flight
attendants was "an extraordinary undertaking in many
respects, consuming thirteen years and thousands of
personnel hours and raising numerous issues under both
[federal employment discrimination] statutes." Id. at 359.
Plaintiffs' counsel brought the case at an early stage in
the development of the law under Title VII and the Equal
Pay Act, and they had to conduct extensive investigation
and discovery against a large, well-financed corporate
defendant with a history of vigorously litigating cases
brought against it, all at a time when there were few legal
precedents and the relevant legal standards were largely
unsettled and uncertain. Id. at 378-79.
As the special master found, Vaccine Act litigation,
while potentially involving complicated medical issues
and requiring highly skilled counsel, is not analogous to
"complex federal litigation" as described in Laffey so as to
RODRIGUEZ v. HHS 8
justify use of the Matrix instead of considering the rates
charged by skilled Vaccine Act practitioners. The Vaccine
Act provides petitioners with an alternative to the tradi-
tional civil forum, applies relaxed legal standards of
causation, and has eased procedural rules compared to
other federal civil litigation. Vaccine Act proceedings,
which involve no discovery disputes, do not apply the
rules of evidence, and are tried in informal, streamlined
proceedings before special masters well-versed in the
issues commonly repeated in Vaccine Act cases, are
different from the complex type of litigation the Laffey
Matrix is designed to compensate. While some cases
under the Vaccine Act may present special challenges,
those difficulties are reflected and compensated in the
other half of the lodestar calculation--the reasonable
number of hours expended.
In addition, unlike the fee-shifting statues to which
the Laffey Matrix has been applied, a party need not
"prevail" under the Vaccine Act in order to receive an
award of attorneys' fees. In other words, 42 U.S.C. §
300aa-15(e)(1) does not require that a claimant prevail on
the merits in order to secure fees. Instead, section 300aa-
15(e)(1) allows for an award as long as the claim was
brought "in good faith" and with "a reasonable basis."
The Supreme Court has held that enhancement of a
calculated lodestar award based on contingency risk is not
permitted under prevailing-party fee-shifting statutes.
City of Burlingame v. Dague, 505 U.S. 557, 567 (1992).
But the Court noted:
[A]n enhancement for contingency would likely
duplicate in substantial part factors already sub-
sumed in the lodestar. The risk of loss in a par-
ticular case (and, therefore, the attorney's
contingent risk) is the product of two factors: (1)
9 RODRIGUEZ v. HHS
the legal and factual merits of the claim, and (2)
the difficulty of establishing those merits. The
second factor, however, is ordinarily reflected in
the lodestar-either in the higher number of hours
expended to overcome the difficulty, or in the
higher hourly rate of the attorney skilled and ex-
perienced enough to do so. . . . Taking account of it
again through lodestar enhancement amounts to
double counting."
Id. at 562-63.
Under Dague, in determining a reasonable rate to be
used in the lodestar calculation, it is appropriate to take
account of the fact that Vaccine Act attorneys are practi-
cally assured of compensation in every case, regardless of
whether they win or lose and of the skill with which they
have presented their clients' cases. If this were not true,
Vaccine Act attorneys would be more favorably compen-
sated than attorneys who take cases under fee-shifting
statutes and are only paid by the opposing side if their
clients' claims are meritorious and they skillfully prose-
cute those claims. The attorneys' fees provisions of the
Vaccine Act "were not designed as a form of economic
relief to improve the financial lot of lawyers." Id. at 563
(quoting Pennsylvania v. Del. Valley Citizens' Council for
Clean Air, 478 U.S. 546, 565 (1986)).
The special master did not apply an incorrect legal
standard nor was her rejection of the limited evidence
petitioner filed arbitrary, capricious, or an abuse of dis-
cretion. The special master considered appropriate evi-
dence, including the Laffey Matrix, and fully explained
the basis for determining the fee rates for petitioner's
attorneys.
AFFIRMED