Masias v. Secretary of Health and Human Services

United States Court of Appeals
for the Federal Circuit
__________________________

DONALD R. MASIAS,
Petitioner-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee.
__________________________

2010-5077
__________________________

Appeal from the United States Court of Federal
Claims in case no. 99-VV-697, Senior Judge Robert H.
Hodges, Jr.
_________________________

Decided: March 15, 2011
_________________________

ROBERT T. MOXLEY, Robert T. Moxley, P.C., of Chey-
enne, Wyoming, 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, Assis-
tant Attorney General, TIMOTHY P. GARREN, Director,
MARK W. ROGERS, Deputy Director, and GABRIELLE M.
FIELDING, Assistant Director.
MASIAS v. HHS 2

__________________________

Before BRYSON, SCHALL, and PROST, Circuit Judges.
SCHALL, Circuit Judge.
This case involves a dispute over the proper calcula-
tion 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 estab-
lished the National Vaccine Injury Compensation Pro-
gram (“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 administra-
tion of Hepatitis B vaccines. Ultimately, Masias’s claim
was resolved through a negotiated settlement which
resulted in a payment to Masias without any determina-
tion 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 re-
sulted 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 de-
ferred until his final decision resolution of the remaining
fees and costs issues in the case. Id. at *3. Most impor-
3 MASIAS v. HHS

tant 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

1 The special master calculated the interim award
of attorneys’ fees due to Masias by applying rates previ-
ously awarded to Mr. Moxley in published decisions ($160
to $215 per hour, depending on when Mr. Moxley worked)
to an undisputed number of hours Mr. Moxley worked in
this case. Interim Decision, 2009 WL 899703, at *4, *5
app.
2 In the Fees Decision, the special master acknowl-
edged that he had inadvertently failed to include 0.8
hours of legal assistant time in the Interim Decision
award; he therefore awarded Masias an additional $80 for
this charge. Fees Decision, 2009 WL 1838979, at *36.
MASIAS v. HHS 4

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 attor-
neys’ 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

3 Section 300aa-15(e)(1) provides:
In awarding compensation on a petition filed un-
der section 300aa-11 of this title the special mas-
ter or court shall also award as part of such
compensation an amount to cover--
(A) reasonable attorneys' fees, and
(B) other costs,
incurred in any proceeding on such petition. If the
judgment of the United States Court of Federal
Claims on such a petition does not award compen-
sation, the special master or court may award an
amount of compensation to cover petitioner's rea-
sonable attorneys' fees and other costs incurred in
any proceeding on such petition if the special mas-
ter or court determines that the petition was
brought in good faith and there was a reasonable
basis for the claim for which the petition was
brought.
5 MASIAS v. HHS

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 deter-
mine 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 (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 un-
der the Vaccine Act should be determined using the forum
rate for the District of Columbia in the lodestar calcula-
tion, 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).
MASIAS v. HHS 6

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 attor-
neys 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 Cum-
berland 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
7 MASIAS v. HHS

lawyers of reasonably comparable skill, experience, and
reputation.’” (quoting Blum, 465 U.S. at 896 n.11)).
After calculating that there was a 59 percent differen-
tial between the rates for “similar” legal services in Chey-
enne, 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

4 The special master excluded from his calculation
time Mr. Moxley spent preparing a summary judgment
motion, having found the filing unnecessary, duplicative,
and excessive. Fees Decision, 2009 WL 1838979, at *35.
MASIAS v. HHS 8

pursuant to 28 U.S.C. § 1295(a)(3) and 42 U.S.C.
§ 300aa-12(f).
DISCUSSION
Under the Vaccine Act, we review a decision of the
special master under the same standard as the Court of
Federal Claims and determine if it is ‘‘arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance with law.’’ 42 U.S.C. § 300aa-12(e)(2)(B),
Markovich v. Sec’y of Health & Human Servs., 477 F.3d
1353, 1355-56 (Fed. Cir. 2007). Each standard applies to
a different aspect of the judgment. Munn v. Sec’y of Dep’t
of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.
Cir. 1992). We review fact findings by the special master
under the arbitrary and capricious standard. Id. Arbi-
trary and capricious is a highly deferential standard of
review. Hines v. Sec’y of Dep’t of Health & Human Servs.,
940 F.2d 1518, 1528 (Fed. Cir. 1991). “If 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.” Id. We review discretionary
rulings under the abuse of discretion standard. Munn,
970 F.2d at 870 n.10. “[N]ot in accordance with law”
refers to the application of the wrong legal standard; the
application of the law is reviewed de novo. See Mark-
ovich, 477 F.3d at 1355-56.
I.
Masias presents several arguments on appeal. First,
he contends that the Federal Circuit erred in Avera when
it adopted the Davis County exception to the forum rule
and that the Laffey Matrix should have been applied in
this case.
9 MASIAS v. HHS

Masias argues that the adoption of the Davis County
exception in Avera was motivated to prevent “windfalls”
to petitioners, and that this reasoning was undermined by
Richlin Security Service Co. v. Chertoff, 553 U.S. 571
(2008), which was decided after Avera. In Richlin, the
Supreme Court held that reimbursement for paralegal
time to a prevailing party under the Equal Access to
Justice Act should be made at “prevailing market rates,”
not at the “reasonable cost” to the attorney. Id. at 576-78,
590.
We do not view Richlin as having undermined Avera’s
adoption of the Davis County exception. The Supreme
Court’s adoption of market rates for paralegal fees is not
contrary to Avera. As seen, in Avera we determined that
one market rate, the forum rate, should generally apply
for attorneys’ fees but that, in certain circumstances,
another market rate, the locality rate, should apply.
Thus, Avera remains binding precedent until it is over-
turned by the Supreme Court or by this court en banc.
Barclay v. United States, 443 F.3d 1368, 1373 (Fed. Cir.
2006); Sacco v. Dep’t of Justice, 317 F.3d 1384, 1386 (Fed.
Cir. 2003); McAllister v. Sec’y of Health & Human Servs.,
70 F.3d 1240, 1242 (Fed. Cir. 1995). 5 The panel could, of
course, recommend to the full court that it take this case
en banc to reconsider Avera, see Federal Circuit Rule
35(a)(1) (2010); Henderson v. Shinseki, 589 F.3d 1201,
1203 (Fed. Cir. 2009), rev’d, 562 U.S. ___, 2011 WL
691592 (2011), but we decline to do so. Avera is thorough,
well-reasoned, and has not been undermined.

5 Acombined petition for panel rehearing and for
rehearing en banc in Avera was denied in 2008. Avera v.
Sec’y of Health & Human Servs., No. 2007-5098 (Fed. Cir.
Apr. 15, 2008).
MASIAS v. HHS 10

Masias does not dispute (1) that Mr. Moxley per-
formed the entirety of his work outside the District of
Columbia, and (2) that the District of Columbia rates
deemed applicable by the special master are significantly
higher than the Cheyenne, Wyoming rates the special
master determined applicable. Following Avera and
Davis County, we hold that the special master did not err
in not applying a Laffey Matrix rate and in awarding
attorneys’ fees at the lower Cheyenne rate. 6

6 Avera, we note, did not reach the question
whether the Laffey Matrix should play any role in the
determination of fees under the Vaccine Act in those cases
where forum rates are utilized. We did, however, have
occasion to reach that question in Rodriguez v. Secretary
of Health & Human Services, No. 2010-5093 (Fed. Cir.
Feb. 9, 2011). In Rodriguez, we addressed “whether the
reasonable 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.” Slip op. at 6. In
Rodriguez, the special master determined that Vaccine
Act litigation is not analogous to “complex federal litiga-
tion,” as described in Laffey, so as to justify use of the
matrix rather than consideration of rates charged by
skilled Vaccine Act practitioners. The special master
therefore rejected the petitioner’s claim that the Laffey
Matrix sets a prima facie forum rate schedule for Vaccine
Act attorneys’ fees. Id. at 4, 6-8. Instead, to determine
the forum rate for compensation of the petitioner’s attor-
neys, the special master analyzed six separate pieces of
evidence, including the Laffey Matrix. After doing so, the
special master arrived at hourly rates for the petitioner’s
attorneys for work performed in the years 2006-2009. Id.
at 4-5. On appeal, the petitioner argued that the special
master had incorrectly distinguished litigation in which
the Laffey Matrix has been applied from Vaccine Act
litigation, and that she also improperly distinguished the
Vaccine Act from other fee shifting statutes. Id. at 7. We
11 MASIAS v. HHS

II.
Masias’s second argument on appeal is an alternative
to his contention that the special master should have
applied the Laffey Matrix. As his alternative argument,
Masias urges that the special master erred in determin-
ing that $160 to $220 per hour was the appropriate rate
for Mr. Moxley’s legal services. In making this argument,
he appears to advance two contentions. His first conten-
tion is that, in determining the hourly rate component of
attorneys’ fees awards in Vaccine Act cases, special mas-
ters should employ a “federal specialty” rate. His second
contention is that the special master erred in determining
that, in this case, $160 to $220 was the appropriate
hourly rate for Mr. Moxley’s legal services in Cheyenne,
Wyoming.
A.
First, Masias argues that the proper “locality” rate for
Vaccine Act practice is the hourly rate attorneys in the
locality charge for complex, federal litigation. Therefore,
he contends, his attorneys’ fees should be compensated at
a “federal specialty” rate. According to Masias, defining
the market for attorney services based solely on geogra-
phy is overly simplistic because the financial demands of
Vaccine Act practice exceed those of a “local” legal prac-
tice. Masias points to the Laffey Matrix as an indication
that attorneys’ fees in Washington, D.C. federal courts for
complex litigation in 2008 were in the range of $440 to
$465 per hour. He asserts that in Cheyenne, Wyoming,

affirmed the decision of the special master, concluding
that she had not applied an incorrect legal standard, that
she had considered appropriate evidence, and that she
had fully explained the basis for determining the fee rates
for the petitioner’s attorneys. Id. at 9.
MASIAS v. HHS 12

the rate for comparable complex federal litigation was
$375 to $405 per hour.
Masias directs us to affidavits from attorneys who
have participated in Vaccine Act litigation and argues
that those affidavits support the proposition that Vaccine
Program practice is complex. In support of the locality
rates he proposes, he also relies on an affidavit by attor-
ney Donald Schultz, who practices commercial, construc-
tion, and energy litigation in Cheyenne. Masias claims
that his proposed federal specialty rate is also validated
by the federal government’s “locality pay” percentage for
federal employees in Wyoming. 7 In further support of his
argument for a federal specialty rate, Masias relies on two
affidavits by economist Dr. Michael Kavanaugh: an
August 14, 2006 affidavit originally filed in Avera, and a
February 29, 2008 affidavit that focuses on identifying
what Dr. Kavanaugh perceives as errors in Avera and the
Davis County exception. 8

7 Without specific citation, Masias asserts that the
“locality pay” rate for Wyoming published by the Office of
Personnel Management is 87.2 percent of that paid to
federal employees in the District of Columbia. Pet’r’s Br.
16 n.21. Masias argues that his proposed Cheyenne,
Wyoming rates are an analogous percentage of Laffey
Matrix rates.
8 For example, Dr. Kavanaugh stated that “the Vac-
cine Program, with only one forum, yet a small number of
regular practitioners nationwide, is a prime example of a
national market . . . [which] will have the same value
everywhere and, clearly, the services of Program attor-
neys have the same value without regard to where they
are produced.” Pet’r’s App. 94 ¶ 4. Dr. Kavanaugh also
opined that “services provided by Mr. Moxley in the
Vaccine Program have the same market value as services
provided by big city attorneys, or attorneys in the District
of Columbia area.” Pet’r’s App. 94-95 ¶ 6. We considered
similar arguments in Avera (indeed, as noted above, the
13 MASIAS v. HHS

We reject Masias’s argument for a federal specialty
rate as an attempt to circumvent Avera’s application of
the Davis County exception. Further, we recognize, as we
did in Avera and as the special master did in the Fees
Decision, that in Blum the Supreme Court explained that
a reasonable hourly rate for the service of a lawyer is ‘‘the
prevailing market rate,’’ defined as the rate ‘‘prevailing in
the community for similar services by lawyers of reasona-
bly comparable skill, experience, and reputation.’’ Blum,
465 U.S. at 896 n.11.
In the Fees Decision, the special master determined
that Masias failed to establish that Mr. Moxley provided
“similar services” to attorneys receiving Laffey Matrix
rates. In reaching that determination, he found that the
attorney affidavits provided by Masias in support of his
claim that Vaccine Program litigation is complex were
conclusory and that the affiants were “far from disinter-
ested observers.” Fees Decision, 2009 WL 1838979, at
*20, *27. 9 He also found that Dr. Kavanaugh’s February
29, 2008 affidavit was “largely misdirected in the sense
that Dr. Kavanaugh disagrees with the Federal Circuit’s
decision in Avera.” Id. at *25 n.16, *43. Finally, as dis-
cussed below, he determined that Mr. Schultz’s rates were
not a valid basis for comparison.

August 14, 2006 Kavanaugh affidavit was first presented
in Avera), and concluded that, while forum rates apply in
general, the Davis County exception applies where the
bulk of the attorney’s work is done outside of Washington,
D.C. and where there is a very significant difference in
compensation favoring the District of Columbia. Avera,
515 F.3d at 1349 (quoting Davis County, 169 F.3d at 758).
9 The special master noted, however, that if future
affiants explained the basis for their conclusion that
Vaccine Program litigation is “complex,” the issue may be
resolved on a more fully developed record. Fees Decision,
2009 WL 1838979, at *22.
MASIAS v. HHS 14

The special master reasoned that, as compared to the
litigation in Laffey, Masias’s case was less complex, did
not present any novel issues of law, and did not require
appellate review on the merits. The special master noted
that in Vaccine Act litigation, evidence need not be pre-
sented under the Federal Rules of Evidence and that
attorneys need only present their case to a trained special
master, not a jury. Id. at *20-22.
Our review of the special master’s factual findings is
limited to a determination of whether the special master
abused his discretion. We agree with the government
that the special master considered the relevant evidence,
drew plausible inferences, and articulated a rational basis
for his finding that, under Blum, Masias did not establish
that the services Mr. Moxley provided were “similar
services” to those provided by the attorneys in Laffey.
Having failed to establish this, Masias effectively failed to
establish that he deserved compensation for attorneys’
fees at rates awarded in complex federal litigation.
B.
As noted, Masias’s second contention is that the spe-
cial master erred in determining the appropriate hourly
rate for Mr. Moxley’s legal services in Cheyenne, Wyo-
ming. Under § 300aa-15(e)(1), the special master was
required to award “reasonable” attorneys’ fees, and there-
fore the hourly rate he employed also had to be “reason-
able.” See Saxton ex rel. Saxton v. Sec’y of Dep’t of Health
& Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). The
special master determined that a reasonable local rate for
Mr. Moxley’s services was $160 per hour for 1999, there-
after increasing proportionately through 2008. On that
basis, the special master determined that $220 per hour
was the appropriate rate for Mr. Moxley’s legal services.
15 MASIAS v. HHS

In arriving at that rate, the special master analyzed
attorney affidavits presented by Masias and statements of
reasonable rates for attorneys in Cheyenne from various
federal and state legal decisions. With regard to the
former, the special master was particularly influenced by
a 2006 affidavit by Mr. Moxley in which he stated that he
has charged his clients in Cheyenne $200 per hour since
2004, increasing to $250 per hour in September of 2006,
which Mr. Moxley noted was “a very high hourly rate for
the Cheyenne market.” Fees Decision, 2009 WL 1838979,
at *5. The special master also noted that Mr. Moxley has
not been awarded more than $250 per hour for either his
vaccine-related or other work. Id. at *7. Masias also
presented the affidavits of other attorneys practicing in
Cheyenne, Wyoming. As noted, among thes e affidavits
was that of Donald Schultz. Mr. Schultz stated that he
had “personal knowledge of hourly billing rates in the
range of $375 to $405 per hour being charged currently to,
and paid regularly by, private clients of Cheyenne, Wyo-
ming and Jackson, Wyoming litigation attorneys who
have experience akin to Mr. Moxley’s and who are billing
for their services in complex litigation matters pending in
the District of Wyoming.” J.A. 157. The special master
was not persuaded by the Schultz affidavit because, in his
view, Masias did not establish that the rates set forth by
Mr. Schultz were a valid basis for comparison, given Mr.
Schultz’s experience in a large, national firm with multi-
ple offices, whereas Mr. Moxley practices in a small firm
with a single location. Fees Decision, 2009 WL 1838979,
at *5, *7.
As is evident from the Fees Decision, the special mas-
ter performed a detailed and careful analysis of the rele-
vant affidavits, including the affidavit submitted by Mr.
Moxley, and he thoroughly reviewed fee rates previously
awarded to practitioners in similar localities. We cannot
MASIAS v. HHS 16

say his decision to give little weight to the several affida-
vits was arbitrary, capricious, or an abuse of discretion.
Masias disputes the special master’s reliance on
statements of reasonable rates for attorneys in Cheyenne,
Wyoming from various legal decisions, arguing that court-
derived hourly rates do not define a market. 10 Among the
decisions considered by the special master, Fees Decision,
2009 WL 1838979, at *6, were several arising out of cases
in the Vaccine Program where hourly rates increased
from $160 in 1999 (when Masias’s claim was filed) to $200
in 2004. See Hart v. Sec’y of Health & Human Servs., No.
01-357V, 2004 WL 3049766, at *2-3 (Fed. Cl. Dec. 17,
2004) ($200 per hour to Mr. Moxley and his partner for
work done in 2004); Gallagher v. Sec’y of Dep’t of Health

10 Masias also argues that the special master’s “‘in-
quisitorial’ mode of adjudication . . . deprived the peti-
tioner and his counsel of procedural due process.” Pet’r’s
Br. 56. Masias apparently is referring to what he claims
was the special master’s reliance on “the facts from
widely-scattered case law as a substitute for evidence,”
and the special master’s use of what he contends was
“unverifiable information dehors the record” regarding the
growing number of Program attorneys available to Vac-
cine Program claimants. Pet’r’s Br. 11-12, 28, 56-57.
Masias asserts that the special master took on the role of
an adversary and adjudicated his claim for attorneys’ fees
and costs without allowing him an opportunity to chal-
lenge the evidence that the special master relied upon.
We reject this argument, as Masias has not established a
violation of due process rights. Masias was on notice of
the special master’s intent to rely on statements of rea-
sonable rates for attorneys in Wyoming from legal deci-
sions due to the special master’s specific issuance of an
Order inviting comments on City of Gillette v. Hladky
Construction, Inc., 196 P.3d 184, 213 (Wyo. 2008), and
Morrison v. Clay, 149 P.3d 696, 702 (Wyo. 2006). Masias
v. Sec’y of Health and Human Servs., No. 99-697 (Feb. 17,
2009) (order inviting comments from the parties).
17 MASIAS v. HHS

& Human Servs., No. 95-191V, 2002 WL 1488759 at *1,
tbl. nn.1-2 (Fed. Cl. May 22, 2002) ($175 per hour to Mr.
Moxley for work done in the early 2000s); Barnes v. Sec’y
of Health & Human Servs., No. 90-1101V, 1999 WL
797468, at *2-3 (Fed. Cl. Sept. 17, 1999) ($160 per hour to
Mr. Moxley for work done in 1998); Walker v. Sec’y of
Dep’t of Health & Human Servs., No. 90-1398V, 1992 WL
92243, at *1 n.2 (Fed. Cl. Apr. 10, 1992) ($100 per hour to
Mr. Moxley for work done in the early 1990s); Estabrook
v. Sec’y of Dep’t of Health & Human Servs., No. 90-752V,
1991 WL 225096, at *1 n.3 (Fed. Cl. Oct. 16, 1991) ($100
per hour to Mr. Moxley for work done in 1990). The
special master also considered the fact that we upheld a
special master’s award of $200 per hour to Mr. Moxley in
Avera. See Avera, 515 F.3d at 1349-50. In addition, the
special master noted that an Order Amending the Judg-
ment in Avera awarded petitioners an additional
$69,003.50 in attorneys’ fees, which, according to Mr.
Moxley’s calculations, represented an award of $250 per
hour. Fees Decision, 2009 WL 1838979, at *6 (citing
Avera v. Sec'y of Health & Human Servs., No. 04-1385
(June 24, 2008) (Order Amending Judgment)).
Although acknowledging that decisions outside the
Vaccine Program cannot consider circumstances relating
to the Program, the special master found value in deci-
sions by Wyoming courts in other legal contexts, including
employment discrimination, class action litigation, and
contracts, due to the judicial officials’ knowledge about
the local legal community. Fees Decision, 2009 WL
1838979, at *6-7, app. tbl.2. According to the special
master, courts in Wyoming have awarded attorneys’ fees
ranging from $125 per hour in 1997 to, in one case, $400
per hour in 2008. Id. at *6. In his determination, the
special master emphasized the decision of the Wyoming
Supreme Court in Morrison. Fees Decision, 2009 WL
MASIAS v. HHS 18

1838979, at *8, *12. In Morrison, the court affirmed the
trial court’s decision limiting out-of-state attorneys to an
hourly rate of $200 in a case challenging an arbitration
pursuant to a stock purchase agreement, as this repre-
sented a “reasonable rate” in Casper, Wyoming. Morrison
v. Clay, 149 P.3d 696, 702 (Wyo. 2006).
We see no error in the special master’s reliance on de-
terminations relating to attorneys’ fees in prior Vaccine
Act cases and in other types of cases in Wyoming. See
Saxton, 3 F.3d at 1519, 1521-22 (stating that it was in the
special master’s discretion to reduce the number of hours
in fee request by 50 percent where analysis, including a
“survey[ of] every fee award made since the beginning of
the vaccine program,” revealed petitioners’ attorneys, on
average, requested reimbursement for roughly twice as
many hours as other firms handling multiple vaccine
cases). Indeed, it was entirely reasonable for the special
master to look to relevant prior decisions addressing
hourly rates for legal services in Wyoming in order to
determine the relevant “local” rate for Cheyenne, Wyo-
ming.
In sum, because the special master considered the
relevant evidence, drew plausible inferences, and articu-
lated a rational basis for his decision, his determination
that a reasonable locality rate for Mr. Moxley’s services
was $220 per hour was not arbitrary, capricious, or an
abuse of discretion. 11
III.
Masias’s third argument on appeal is that the Vaccine
Act violates the Appointments Clause of the Constitution

11 We have also considered, and reject, Masias’s ar-
gument challenging the special master’s award of costs in
the amount of $19,035.25.
19 MASIAS v. HHS

because it authorizes special masters to issue decisions
without affording an opportunity for de novo review by
Court of Federal Claims judges. 12 Masias argues that
because the Court of Federal Claims does not review all
special masters’ decisions de novo, special masters are
given the power to render final decisions on behalf of the
United States without requiring the permission of other
Executive officers. Thus, he urges, they serve as princi-
pal, not inferior, officers of the United States within the
meaning of the Appointments Clause. Masias argues that
this is unconstitutional because special masters are not
subject to the appointment process for principal officers of
the United States set forth in the Appointments Clause,
which mandates appointment by the President with the
advice and consent of the Senate for such officers. Pet’r’s
Br. 52-55; Reply Br. 11-14.
The Appointments Clause of Article II of the Consti-
tution reads as follows:
[The President] shall . . . nominate, and by and
with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Ap-
pointments are not herein otherwise provided for,
and which shall be established by Law: but the
Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the
Heads of Departments.

12 As noted above, a decision of a special master is
issued pursuant to 42 U.S.C. § 300aa-12(d)(3)(A). There-
after, if it is challenged, the Court of Federal Claims
reviews it pursuant to 42 U.S.C. § 300aa-12(e)(2)(B) to
determine whether it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
MASIAS v. HHS 20

U.S. Const. art. II, § 2, cl. 2.
The question we must decide is whether special mas-
ters qualify as “inferior officers” within the meaning of the
Appointments Clause, for if they do, the provisions of the
Vaccine Act authorizing them to issue decisions on com-
pensation, 42 U.S.C. § 300aa-12(d)(3)(A), and providing
for review of those decisions by the Court of Federal
Claims, 42 U.S.C. § 300aa-12(e)(2)(B), are not unconstitu-
tional. In Edmond v. United States, 520 U.S. 651 (1997),
the Supreme Court described “inferior officers” under
Article II, Section 2 of the Constitution as those “whose
work is directed and supervised at some level by others,”
namely, principal officers, “who were appointed by Presi-
dential nomination with the advice and consent of the
Senate.” 520 U.S. at 663. The Court stated that the mere
fact that an officer is “charged with exercising significant
authority on behalf of the United States” does not neces-
sarily render the officer a “principal” officer. Id. at 662
(“The exercise of ‘significant authority pursuant to the
laws of the United States’ marks, not the line between
principal and inferior officer for Appointments Clause
purposes, but rather, . . . , the line between officer and
nonofficer.”) (citing Freytag v. Commissioner, 501 U.S.
868, 881-82 (1991) and Buckley v. Valeo, 424 U.S. 1, 126
(1976)).
In Edmond, judges of the Coast Guard Court of
Criminal Appeals were found to be inferior officers for two
reasons. First, the Court pointed to the supervision over
their work exercised by the General Counsel of the De-
partment of Transportation in his capacity as Judge
Advocate General of the Coast Guard, in which he was
found to exercise “administrative oversight.” 520 U.S. at
21 MASIAS v. HHS

664. 13 The Court also pointed to the ability of the Court
of Appeals for the Armed Forces to reverse the judges’
decisions. 520 U.S. at 664-65, 666. In that regard, the
Court acknowledged that the scope of review exercised by
the Court of Appeals for the Armed Forces over the Coast
Guard Court of Criminal Appeals was limited, but stated
that the limitation upon review did not render the judges
“principal officers.” Id. at 665.
Special masters, like the judges of the Coast Guard
Court of Criminal Appeals in Edmond, are directed and
supervised by principal officers who have undergone a
nomination and confirmation process. 14 Special masters
are appointed by the judges of the Court of Federal
Claims, 42 U.S.C. § 300aa-12(c)(1), who, in turn, are
appointed by the President “by and with the advice and
consent of the Senate,” 28 U.S.C. § 171(a). At the same
time, the special masters are administratively supervised
by the judges of the Court of Federal Claims in a manner
similar to the way in which the Judge Advocate General
of the Coast Guard was found to exercise administrative
oversight in Edmond. The Court of Federal Claims
judges can remove special masters “for incompetency,
misconduct, or neglect of duty or for physical or mental
13 Subsequent to the Court’s decision in Edmond,
the Coast Guard was transferred from the Department of
Transportation to the Department of Homeland Security.
See 6 U.S.C. § 468(b); 10 U.S.C. § 801(1).
14 At the time of the Court’s decision in Edmond, the
General Counsel of the Department of Transportation was
“appointed by the President, by and with the advice and
consent of the Senate.” 49 U.S.C. § 102(e) (1994). As
noted, the Coast Guard was subsequently transferred to
the Department of Homeland Security. See 6 U.S.C.
§ 468(b); 10 U.S.C. § 801(1). The General Counsel of the
Department of Homeland Security is also “appointed by
the President, by and with the advice and consent of the
Senate.” 6 U.S.C. § 113(a).
MASIAS v. HHS 22

disability or for other good cause shown.” 42 U.S.C.
§ 300aa-12(c)(2); see also Edmond, 520 U.S. at 664 (noting
the ability of a Judge Advocate General to remove a Court
of Criminal Appeals judge). Second, decisions issued by
the special masters are subject to review by the Court of
Federal Claims. 42 U.S.C. § 300aa-12(d)(3), (e). In that
regard, the court has jurisdiction to undertake a review of
the record and may: (A) uphold the findings of fact and
conclusions of law of the special master and sustain the
special master’s decision; (B) set aside any findings of fact
or conclusions of law of the special master found to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law and issue its own findings of
fact and conclusions of law; or (C) remand the petition to
the special master for further action in accordance with
the court’s direction. 42 U.S.C. § 300aa-12(e)(2). 15 Re-
view of decisions of special masters by the Court of Fed-
eral Claims thus parallels the process for review of
decisions of the Coast Guard Court of Criminal Appeals
by the Court of Appeals for the Armed Forces, which was
before the Court in Edmond. Contrary to Masias’s argu-
ment, the fact that the review is limited does not mandate
that special masters are necessarily “principal officers.”
Edmond, 520 U.S. at 665.
For the foregoing reasons, we conclude that special
masters are “inferior officers” for purposes of the Ap-
pointments Clause. Consequently, the provisions of the
Vaccine Act relating to their issuance of decisions and
review of those decisions do not violate the Clause. Ma-
sias’s constitutional challenge to the Act is without merit.

15 Finally, this Court reviews findings of fact and
conclusions of law of the United States Court of Federal
Claims at a party’s request. 42 U.S.C. § 300aa-12(f).
23 MASIAS v. HHS

CONCLUSION
The decision of the Court of Federal Claims affirming
the decision of the special master is affirmed.
AFFIRMED