In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1348V
Filed: April 3, 2017
* * * * * * * * * * * * * UNPUBLISHED
JEANNIE ONIKAMA, mother of I.O., a *
minor, *
* Special Master Gowen
Petitioner, *
* Interim Attorneys’ Fees and Costs;
v. * Reasonable Hourly Rate; Forum
* Rate; Local Rate; Reasonable Hours
SECRETARY OF HEALTH * Expended
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Camille M. Collett, United States Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS' FEES AND COSTS1
On November 9, 2015, Jeannie Onikama (“petitioner”) filed a petition on behalf of her
minor child, I.O., pursuant to the National Vaccine Injury Compensation Program.2 Petitioner
alleged that as a result of receiving hepatitis A, diphtheria, tetanus, and pertussis (“DTaP”),
pneumococcal conjugate, varicella, and Haemophilus influenzae vaccines on November 20,
2012, I.O. suffered a seizure disorder and developmental delay. See Petition at ¶¶ 4-7.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to 34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to individual sections of
the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
Following an initial status conference on February 24, 2016, petitioner was ordered to file
an expert report by April 25, 2016. Thereafter, petitioner requested and was granted four
extensions of time, until July 27, 2016, to file her expert report. Petitioner did not file a report
and on August 17, 2016, filed a motion for interim attorneys’ fees and costs. Petitioner’s motion
states that petitioner’s counsel, Richard Gage, plans to withdraw as counsel. Memorandum in
Support of Application for Payment of Attorneys’ Fees and Costs (“Pet. Memo.”) at 1.
Petitioner requests a total of $13,647.24 in attorneys’ fees and costs. Petitioner’s (“Pet.”) Motion
(“Mot.”) at 1. The rates billed by counsel are based on forum rates. See Pet. Mot., Tab C-E.
On September 6, 2016, respondent filed a response to petitioner’s fee motion.
Respondent objected to the payment of interim fees and costs at this time, but stated that if and
when it is appropriate for the special master to award fees and costs in this case, based on his
judgment and experience in similar cases and his “overall sense” of what is reasonable for the
work performed in this case to date, respondent believes reasonable attorneys’ fees and costs
would fall between $8,000.00 and $12,000.00. Resp. Response at 1, 5-6. Respondent
“recommend[ed] that the special master exercise his discretion and determine a reasonable award
for attorneys’ fees and costs within that range.” Id. at 2 (internal footnote omitted). With regard
to Mr. Gage’s hourly rate, respondent also stated that “other experienced Program petitioners and
Mr. Gage himself, who practice law in less-populated states in the western United States have
consistently been denied the forum rate by the Federal Circuit.” Id. (citing Masias v. Sec’y of
Health & Human Servs., 634 F.3d 1283, 1288 (Fed. Cir. 2011) (holding that the special master
did not err in awarding attorneys’ fees to Mr. Robert Moxley at the local Cheyenne, Wyoming,
rate) (Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1354 (Fed. Cir. 2011) (affirming
the special master’s decision awarding Mr. Gage local rates)).
A status conference was held on September 22, 2016, to discuss petitioner’s fee motion.
During the status conference, the undersigned directed petitioner to file a supplemental brief
discussing the issue of whether Mr. Gage should be awarded the local Cheyenne, Wyoming, rate
or the forum rate. Order, filed Sept. 26, 2016, at 1. The undersigned noted that in 2008, the
Federal Circuit upheld a special master’s decision awarding local rates to another attorney in
Cheyenne, Wyoming, Mr. Robert Moxley.3 Avera v. Sec’y of Health & Human Servs., 515 F.3d
1343 (Fed. Cir. 2008). Therefore, petitioner was instructed to address “whether the Cheyenne,
Wyoming rate has changed since Avera and provide support for such contention.” Order, filed
Sept. 26, 2016 (emphasis in original). During the conference, petitioner’s counsel contended that
“there is not a great deal of fee shifting litigation in Wyoming to enable the provision of
decisional data points.” Id. Accordingly, the undersigned stated that petitioner could address
attorney rates that have been set or approved by the United States District Court of Wyoming, by
Wyoming state courts, and in neighboring jurisdictions such as Colorado. Id. at 1-2.
On November 11, 2016, petitioner filed a supplemental memorandum responding to the
September 26, 2016, Order, setting forth additional information to support petitioner’s asserted
local rates and demonstrate that local rates are not “very significantly different” than forum rates.
3
The September 26, 2016, Order, stated that Avera addressed fees for Mr. Gage’s firm. As petitioner
notes in her supplemental memorandum, Avera addressed fees for Mr. Moxley, of Robert T. Moxley,
P.C., who left Mr. Gage’s firm approximately two years prior to Avera. Nevertheless, Avera did involve
an analysis of local Cheyenne, Wyoming, rates.
2
Respondent filed a response to petitioner’s supplemental memorandum on December 14, 2016.
Petitioner filed additional documents in support of her attorneys’ fees and costs on January 18,
2017. This matter is now ripe for adjudication.
I. Interim Attorneys’ Fees and Costs
Interim fee awards are permissible under the Vaccine Act. See Avera, 515 F.3d at 1352.
A special master may award reasonable interim attorneys’ fees and costs before judgment on an
entitlement decision is entered, so long as the claim was brought in good faith and with a
reasonable basis. § 15(e)(1); Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1374-75
(Fed. Cir. 2010). The Federal Circuit has identified examples of circumstances under which an
award of interim fees may be appropriate, which include “cases where proceedings are protracted
and costly experts must be retained,” or where petitioner would otherwise suffer an “undue
hardship.” Avera, 515 F.3d at 1352. However, Avera has been interpreted as allowing special
masters broad discretion in determining whether to award interim fees. See, e.g. Al-Uffi v. Sec’y
of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5 (Fed. Cl. Spec. Mstr. Sept.
30, 2015) (internal citations omitted); Bear v. Sec'y of Health & Human Servs., No. 11–362V,
2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) (Avera provides only “examples and
general guidance concerning when interim fees and costs might be awarded, leaving the special
masters broad discretion to consider many factors in considering whether an interim award is
appropriate in a particular case”) (emphasis in original); Kirk v. Sec'y of Health & Human
Servs., No. 08–241V, 2009 WL 775396, at *1 (Fed. Cl. Spec. Mstr. Mar. 13, 2009) (reading
Avera to set a “broad, discretionary vehicle for ensuring that petitioners are not punished
financially while pursuing their vaccine claim”).
a. Good Faith and Reasonable Basis
Respondent does not dispute that this claim was filed in good faith and with a reasonable
basis. “Good faith” is a subjective standard and petitioners are entitled to a presumption of good
faith. Hamrick v. Sec’y of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed.
Cl. Spec. Mstr. Nov. 19, 2007); Grice v. Sec’y of Health & Human Servs., 36 Fed. Cl. 114, 121
(1996). The undersigned finds that this claim was brought in good faith.
With regard to reasonable basis, the Court of Federal Claims has held that the statutory
language of 42 U.S.C. § 300aa-15(e)(1)(B) grants the special master “maximum discretion in
applying the standard.” Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 402 (Fed.
Cl. 2012). Many special masters and Court of Federal Claims judges have determined that the
reasonable basis requirement is an “objective consideration determined by the totality of the
circumstances.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303 (Fed. Cl.
2011); Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 286 (2014). Factors to
be considered include factual basis, medical support, and the circumstances under which a
petition is filed. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030,
at *6-9 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Petitioner must furnish “some evidence”
supporting the claims in the petition, but the evidentiary showing required is less than a
preponderance of the evidence. Chuisano v. Sec’y of Health & Human Servs., No. 07-452V,
2013 WL 6234660, at *1, *13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013).
3
In this case, petitioner filed extensive medical records that facially support the facts as set
forth in the petition. See, e.g. Pet. Ex. 1 at 42-43 (11/21/2012 ER visit for febrile seizures), 63
(chief complaint: seizures and developmental delay); Pet. Ex. 4 at 39 (documenting recurrent
“spells of going limp with eyes open and staring” and history of global developmental delay).
Petitioner filed four motions for extensions of time to file an expert report, in which petitioner
indicated that her expert was very close to producing a final report. On April 25, 2016, petitioner
stated that her expert was “reviewing the records in this case.” On June 10, 2016, petitioner
stated that her expert report “[was] not yet complete” but that she anticipated having it filed
within two weeks. On June 24, 2016, petitioner stated that her expert “[was] awaiting further
information from Petitioner which she is attempting to get,” and again stated that petitioner
anticipated having an expert report filed within two weeks. On July 7, 2016, petitioner again
stated that “Petitioner’s expert is awaiting further information from Plaintiff which she has not
received as of this date,” and requested an additional twenty days to file the report. No expert
report was filed and petitioner filed a motion for interim attorneys’ fees on August 17, 2016.
The motion indicated that Mr. Gage planned to withdraw as counsel, but did not detail the
reasons for Mr. Gage’s planned withdrawal, and it is unclear why no expert report was ever filed.
Petitioner’s requested costs include those for Dr. Marcel Kinsbourne, whose invoice indicates
that he spent two hours for “[r]eview of medical literature and preparation of report.” Given the
fact that no expert report was filed, the undersigned infers that petitioner has been unable to
secure an expert report at this time. If so, Mr. Gage is appropriately withdrawing from
representation. Based on the representations made in petitioner’s motions for extensions of time
and the information in Dr. Kinsbourne’s invoice, it appears that Dr. Kinsbourne initially
indicated he would be able to provide an opinion on petitioner’s behalf but was ultimately unable
to do so for unknown reasons. The undersigned finds that this case had a reasonable basis
throughout its pendency. To the extent that Dr. Kinsbourne may have provided petitioner a
preliminary opinion that undermines the reasonable basis of this case, petitioner’s counsel is
withdrawing at an appropriate time and will be awarded attorneys’ fees for the duration of his
work on this matter.
b. Timing of Interim Fees
Respondent objects to the payment of interim fees and costs at this time, and argues that
the withdrawal of petitioner’s counsel is not a sufficient basis for an award of interim attorneys’
fees and costs under Avera. Resp. Response at 2 (citing McKellar v. Sec’y of Health & Human
Servs., 101 Fed. Cl. at 301 (“[W]e view Avera to mean that some special showing is necessary to
warrant interim fees, including but not limited to the delineated factors of protracted
proceedings, costly experts, or undue hardships.”)) Respondent states that petitioner has not
identified any special showing to justify an award of interim attorneys’ fees and costs under the
particular circumstances of this case, as these proceedings have not been “protracted,” no expert
report has been filed or expert costs claimed, and petitioner has not made a showing that she
needs payment of interim fees and costs to avoid an undue hardship.4 Id.
4
Respondent also cites three other cases in which special masters have denied interim fee applications
from Mr. Gage. Resp. Response at 4-5 (citing Bigbee v. Sec’y of Health & Human Servs., No. 06-663V,
2012 WL 1238484 (Fed. Cl. Spec. Mstr. Mar. 23, 2012) (interim fees not warranted as case was ripe for a
request for final award of attorneys’ fees and costs); Heinzelman v. Sec’y of Health & Human Servs., No.
4
The undersigned finds an award of interim fees appropriate at this time based on the
overall circumstances of this case. The circumstances set forth in Avera are “illustrative rather
than exhaustive,” and special masters may look at the overall circumstances present in a case.
Hiland v. Sec’y of Health & Human Servs., No. 10-491V, 2012 WL 542683, at *5 (Fed. Cl.
Spec. Mstr. Jan. 31, 2012 (citing Crutchfield v. Sec’y of Health & Human Servs., 2011 WL
3806351, at *6–8 (finding the overall circumstances of the case are appropriate for an interim
award).
Circumstances that may warrant an award of interim fees are not limited to those
described in Avera, and several cases have recognized the withdrawal of counsel is a
circumstance under which an award of interim fees may be appropriate. See, e.g. Rehn v. Sec’y
of Health & Human Servs., 126 Fed. Cl. 86, 92 (2016) (the special master may consider whether
the attorney has withdrawn or been discharged as a factor pertinent to awarding interim fees,
particularly where there may be an indefinite delay until the matter is ultimately resolved);
Woods v. Sec’y of Health & Human Servs., No. 10-377V, 105 Fed. Cl. 148, 154 (2012) (“The
Special Master reasonably concluded that delaying a fee award to counsel who had ended their
representation for an indeterminable time until the case was resolved sufficed to constitute the
type of ‘circumstances’ to warrant an interim fee award.”); Uscher v. Sec’y of Health & Human
Servs., No. 15-798V, 2016 WL 3670518 (Fed. Cl. Spec. Mstr. June 15, 2016); Smirniotis v.
Sec’y of Health & Human Servs., No. 14-617V, 2016 WL 859057, at *2 (Fed. Cl. Spec. Mstr.
Feb. 12, 2016) (“paying attorneys when their service is complete is appropriate”); Bear v. Sec’y
of Health & Human Servs., No. 11-362V, 2013 WL 691963, at *5 (Fed. Cl. Spec. Mstr. Feb. 4,
2013) (“the fact that counsel is withdrawing can be one important factor, supporting an interim
award”); Hiland, 2012 WL 542683, at *6 (“[t]o the extent that the court in McKellar held that
withdrawal of an attorney is not a circumstance in which an interim fee award is appropriate, the
undersigned respectfully disagrees.”).
In this case, petitioner’s counsel has stated his intent to withdraw. Pet. Memo at 1.
During the September 26, 2016, status conference held to discuss petitioner’s fee motion, Mr.
Gage indicated that petitioner is deciding whether to proceed pro se or retain new counsel. See
Order, filed Sept. 26, 2016. On November 8, 2016, in response to the notice that the statutory
240-day period for the special master’s issuance of a decision in the case had expired, petitioner
filed a notice of her intent to remain in the Program. See Order, filed July 6, 2016; Notice of
Intent, filed July 8, 2016. Thus, although Mr. Gage plans to withdraw, it appears likely that
petitioner plans to continue pursuing this case in some capacity. The petition has been pending
fifteen months, and it is not known how long this claim will take to ultimately resolve given that
petitioner intends to proceed with her claim but has not yet indicated whether she will be seeking
to retain new counsel or proceed pro se. The undersigned finds it reasonable to award attorneys’
07-01V, 2012 WL 1119389 (Fed. Cl. Spec. Mstr. Mar. 13, 2012) (denying a third award of interim fees
and costs while an appeal of the amount of compensation awarded on entitlement was pending because
petitioner did not establish the special circumstances needed for such an award); Stone v. Sec’y of Health
& Human Servs., No. 04-1041V, 2011 WL 7068955 (Fed. Cl. Spec. Mstr. Nov. 14, 2011) (denying a
second award of interim fees while appeal of entitlement decision pending). The cited cases, however,
present different factual circumstances from the present case. Here, I find that the overall circumstances
justify an interim fee award.
5
fees and costs at this juncture, rather than delay the award for an undetermined amount of time
pending the ultimate resolution of the case.
II. Reasonable Attorneys’ Fees and Costs
“[T]he determination of the amount of reasonable attorneys’ fees is within the special
master’s discretion,” and Special Masters are afforded “wide discretion” in determining the
reasonableness of a petitioner’s request for reasonable attorneys’ fees and costs. Saxton v. Sec’y
of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993); Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar
approach, a court first determines “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. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee award
based on other specific findings. Id. at 1348.
Under the Vaccine Act, 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.” Avera, 515 F.3d at 1347-48. In determining an award of
attorneys’ fees, a court should generally use the forum rate, i.e., the District of Columbia rate.
Id. at 1348. However, an exception to the forum rule applies where the bulk of an attorney’s
work is performed outside of the forum, and where there is a “very significant” difference in
compensation rates between the place where the work was performed and the forum. Id. at 1349
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States
Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).
Petitioner argues that there is not a very significant difference between local rates in
Cheyenne, Wyoming, and forum rates, and that the award of attorneys’ fees in this case should
therefore be based on forum rates. Pet. Mot. at 1. Respondent asserts that there is a very
significant difference between local and forum rates, and that petitioner’s attorney should
therefore be compensated at local rates. See Resp. Response to Pet. Supp. Memo. (“Resp.
Second Response”) at 11.
a. Local Rates
Petitioner asserts that Mr. Gage’s local rate is approximately $350 to $425 per hour, the
same as the forum rate range found reasonable for attorneys with more than 20 years of
experience in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). Pet. Memo. at 4. To support this rate range, petitioner cited
the hourly rate paid Mr. Gage in two recent non-vaccine cases and cited several cases from the
United States District Court for the District of Colorado in which attorneys’ fees were awarded
pursuant to fee-shifting provisions. Petitioner asserts that Cheyenne rates awarded to Mr. Gage
and Mr. Robert Moxley in past Program cases were “artificially low.” See Pet. Memo. at 4; Pet.
6
Supp. Memo. at 3. Therefore, petitioner’s contention is that Mr. Gage’s 2016 local rate cannot
be established by simply applying a growth factor to previously awarded Cheyenne rates.
Respondent, on the other hand, asserts that “petitioner has not provided support for the
change in the Cheyenne local rate [since Avera] that is necessary for Mr. Gage to be awarded his
requested forum rate,” and asserts that Mr. Gage’s local rate is approximately $300 per hour.
Resp. Second Response at 6-7. For the reasons discussed below, the undersigned finds that Mr.
Gage’s reasonable local rate would be $311 per hour.
i. Program Rates
Both petitioner and respondent note that Mr. Gage’s local rates have been determined
recently by other special masters in several Program cases. In Hall, the Federal Circuit affirmed
the special master’s decision awarding Mr. Gage a local rate of $240 per hour for 2008-2009.
Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1354 (Fed. Cir. 2011). The Federal
Circuit found that the special master in Hall “undertook a detailed analysis of reasonable local
and forum hourly rates in Vaccine Act cases and other similar litigation.” Id. at 1356. In 2014,
Mr. Gage entered into a fee agreement with respondent to accept a 2014 hourly rate of $274 per
hour.5 Engels v. Sec’y of Health & Human Servs., No. 07-804V, 2014 WL 2199405, at *1 (Fed.
Cl. May 2, 2014), supplemented, No. 07-804V, 2014 WL 4293699 (Fed. Cl. July 22, 2014).
This agreement was reached following an ADR process, and the special master stated that
“[t]hese rates are to be applied globally to other attorney fee motions filed by his firm, and are
not limited to the request filed in this case.” 2014 WL 2199405, at *1. Respondent urges that
“[t]he rate agreed to by Mr. Gage [in Engels] is circumstantial evidence that goes to clarifying
what a reasonable locality rate for Mr. Gage should be as he wouldn’t have agreed to a rate that
did not adequately or appropriately compensate him for his time.” Respondent’s Second
Response at 6. Finally, petitioner states that most recently Mr. Gage was awarded a 2014-2015
rate of $285 per hour. Pet. Supp. Memo. at 4 (citing Carpenter v. Sec’y of Health & Human
Servs., No. 13-628V, 2016 WL 1878438 (Fed. Cl. Spec. Mstr. Apr. 11, 2016)). The decision in
Carpenter did not state the rate awarded, however. Rather, respondent recommended a general
range for a fee award without noting specific objections to the rate billed, and the special master
awarded the requested fees finding the overall amount reasonable.6 Id. at *1.
Mr. Gage’s local rates have also been recently examined in other cases not cited by the
parties. In Auch v. Sec’y of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *12
5
Paralegals were awarded a 2014 rate of $112 per hour. Engels, 2014 WL 2199405, at *1.
6
Petitioner also cites Austin-Lemmon v. Sec’y of Health & Human Servs., No. 07-41V, 2011 WL
3555800 (Fed. Cl. Spec. Mstr. July 19, 2011) and Carroll v. Sec’y of Health & Human Servs., No. 04-
1684V, 2011 WL 3678835 (Fed. Cl. Spec. Mstr. July 28, 2011) as examples of Program cases in which
Mr. Gage has been awarded attorneys’ fees. Pet. Memo. at 3-4. Petitioner states that the rate of $250 for
2011 awarded therein was artificially low. Id. Austin-Lemmon and Carroll, however, do not discuss the
rate awarded because the fee motions were unopposed by respondent and, more importantly, do not
specify the year for which the rate was awarded. Thus it is not possible to extrapolate from them in order
to determine Mr. Gage’s 2016 rate.
7
(Fed. Cl. Spec. Mstr. May 20, 2016), the special master awarded Mr. Gage a 2015 local rate of
$300 per hour based on his experience and skill in the Program. Applying a 3.7% annual growth
rate, this would yield a 2016 rate of $311 per hour.7 In McErlean v. Sec’y of Health & Human
Servs., No. 13-543V, 2016 WL 4575583 (Fed. Cl. Spec. Mstr. July 28, 2016), the special master
declined to follow Auch and awarded Mr. Gage a 2013 local rate of $260 per hour. The special
master applied a 3.7% annual growth rate to find Mr. Gage’s 2016 rate was $290 per hour. Id. at
*5.
In McCulloch, I applied a 3.7% annual rate of growth in attorneys’ fees to adjust hourly
rates for different years. This percentage adjustment was based upon the Real Rate Report8
submitted by respondent, and represents the annual rate of growth in attorneys’ fees since the
2008 recession. McCulloch, 2015 WL 5634323, at *16; see also Garrison v. Sec’y of Health &
Human Servs., No. 14-762V, 2016 WL 3022076, at *3 (Fed. Cl. Spec. Mstr. Apr. 29, 2016),
aff’d, 128 Fed. Cl. 99 (2016)). I will apply the same rate of growth in the present case.
Applying a 3.7% annual growth rate to the rates awarded in Hall, Engels, Carpenter, Auch, and
McErlean, Mr. Gage’s 2016 local rate would be $309.50, $294.65,9 $295.55, $311.10, or
$290.00, respectively.
Local Cheyenne, Wyoming, rates were also examined in Avera and Masias. In those
cases, the Federal Circuit affirmed the award of local rates to Robert Moxley, Mr. Gage’s former
partner. Petitioner asserts that the rates awarded to Mr. Moxley in these cases were artificially
low, and also asserts that Mr. Gage should receive higher rates than Mr. Moxley.10 Pet. Supp.
7
The special master in Auch applied an annual adjustment based on the CPI to determine Mr. Gage’s
rates for 2014, 2013, and 2012. 2016 WL 3944701, at *12. Although some special masters have adjusted
rates using the CPI, I adjusted rates according to the 3.7% annual rate of growth in attorneys’ fees in
McCulloch and Garrison. See McCulloch, 2015 WL 5634323, at *16; Garrison, 2016 WL 3022076, at
*3.
8
The Real Rate Report was a study of attorney billing rates to corporate clients and stated in its executive
summary that attorney rates have increased by an average of 3.7% since 2008. See McCulloch, 2015 WL
5634323, at *9. Prior to that the rate increase had been higher. Id.
9
The decision in Engel stated that the parties’ agreement indicated that the 2015 hourly rates for Mr.
Gage and the firm’s paralegals should be determined by applying the U.S. Department of Labor, Bureau
of Labor Statistics CPI Inflation Calculator to their 2014 hourly rates. 2014 WL 2199405, at *1 n3. As
discussed below, I find use of a 3.7% annual adjustment more appropriate. However, because the parties
in Engel agreed to use the CPI to calculate growth, I note that using the CPI Inflation Calculator to
calculate Mr. Gage’s 2016 rate based on a 2014 rate of $274 per hour, his 2016 rate would be $277.79.
United States Department of Labor, Bureau of Labor Statistics, CPI Inflation Calculator,
https://www.bls.gov/data/inflation calculator.htm (last visited Feb. 22, 2017).
10
In the context of distinguishing himself from Mr. Moxley, Mr. Gage also states that at the time of the
Masias decision, Mr. Moxley was being paid $220 per hour while Mr. Gage was being paid $250 per hour
with respondent’s consent. Id. at 3-4 (citing Austin-Lemmon, 2011 WL 3555800; Carroll, 2011 WL
3678835). Petitioner also submitted an affidavit from Mr. Moxley stating that he charges $300 per hour
at the present time for his hourly criminal defense, estate planning, administrative hearing, and civil
litigation. Pet. Ex. 16. As noted above, Austin-Lemmon and Carroll do not discuss the rate awarded
8
Memo. at 3. Petitioner states that when they practiced together over ten years ago Mr. Gage
represented significantly more vaccine clients than Mr. Moxley and the disparity has increased
since then. Pet. Supp. Mot. at 3. Mr. Moxley does not currently have any cases in the Program
whereas Mr. Gage has 50. Id. The undersigned agrees that Mr. Gage has more Program
experience than Mr. Moxley, and that his local rate would therefore be somewhat higher than
Mr. Moxley’s. However, it does not seem necessary to undertake an analysis of the differences
between Mr. Gage and Mr. Moxley given that several past Program cases discussed above, and
Hall in particular, determined local Cheyenne rates for Mr. Gage. Thus, rather than comparing
Program rates awarded to different attorneys, the issue is whether petitioner has submitted
evidence that the present local Cheyenne rate is higher than simply adjusting past Program rates
awarded to Mr. Gage would suggest. Avera and Masias are useful insofar as they analyzed
whether the difference between Mr. Moxley’s local and forum rates was “very significantly
different.” Accordingly, Avera and Masias are discussed below in the context of the
determination of what constitutes a “very significant difference” between local and forum rates.
As stated above, based on past Program rates awarded to Mr. Gage, it appears that his
local 2016 rate would be between $290 and $311 per hour. Based on Mr. Gage’s skill,
experience, and reputation, the undersigned finds the high end of this range most appropriate.
Accordingly, based on past Program cases, a reasonable local rate for Mr. Gage would be $311
per hour.
ii. Non-Program and District Court Cases
Petitioner asserts that the rates awarded in previous Program cases were “artificially
low,” and that therefore the undersigned should not simply adjust previously awarded rates to
determine a reasonable local 2016 rate. To support a higher local rate, petitioner submitted
evidence of Mr. Gage’s hourly rate in two recent non-vaccine cases and cited several cases from
the United States District Court for the District of Colorado in which attorneys’ fees were
awarded pursuant to fee-shifting rules or statutory provisions.
Mr. Gage was paid a rate of $300 per hour for his work representing a plaintiff in a 2009-
2010 Fair Labor Standards Act case in Cheyenne, Wyoming, pursuant to the fee shifting
provisions of the FLSA, which provide for attorneys’ fees for the prevailing party. Pet. Memo.
at 4-5 (citing Pet. Ex. 14, affidavit of opposing counsel);11 Pet. Supp. Memo. at 1. During the
because the fee motions were unopposed by respondent. Further, the decisions do not indicate what
year(s) that rate was awarded for so it is unclear how to compare the rates in Austin-Lemmon and Carroll
to the 2008 rate of $220 per hour awarded in Masias. In fact, in petitioner’s first memorandum she states
that the rate was awarded for 2011, so it appears that a direct comparison between the $220 and $250 rate
would not be appropriate. See Pet. Memo. at 4. Hall, in which the special master thoroughly analyzed
local rates, was decided in 2011 and awarded Mr. Gage a local rate of $240 per hour for 2008-2009. 640
F.3d at 1354. Comparison of Mr. Gage and Mr. Moxley using other unreasoned cases is not helpful.
11
Petitioner’s initial memorandums cite to “ex. 1, affidavit.” No such exhibit appears to have been filed
with the August 17, 2016, memorandum, but Exhibit 14, filed January 18, 2017, is an affidavit from
Stephen Kline, defendant’s counsel on the 2009-2010 FLSA case in which Mr. Gage represented plaintiff.
See Pet. Ex. 14.
9
same time period, Mr. Gage also worked as local Wyoming counsel for defendant in an asbestos
exposure case, for which he was paid at a rate of $300 per hour. Pet. Supp. Memo. at 1 (citing
Pet. Supp. Memo., Ex. 2, affidavit of co-counsel). It does not appear that the fees in the asbestos
case were awarded pursuant to a fee-shifting provision or were otherwise contingent in nature.
Rather, “[d]uring his involvement in that case Richard Gage was paid at a rate of $300 per-hour.”
Pet. Supp. Memo., Ex. 2.
Petitioner cites four cases from the United States District Court for the District of
Colorado in support of Mr. Gage’s local rate. Pet. Supp. Memo. at 2 (citing Center for
Biological Diversity v. United States Fish and Wildlife Serv., 703 F.Supp.2d 1243, 1249 (D.
Colo., Apr. 1, 2010); Nero v. American Family Mutual Ins. Co., 2013 WL 5323191 (D. Colo.,
Sept. 23, 2013); MemoryTen, Inc. v. LV Admin. Servs., Inc., 2013 WL 1154492, at *3 (D.
Colo., Mar. 19, 2013); Nova Leasing, LLC v. Sun River Energy, Inc., 2013 WL 1302265, at *3
(D.Colo. Mar. 28, 2013). In Center for Biological Diversity, the plaintiff was awarded attorneys’
fees pursuant to the Freedom of Information Act (FOIA), which provides for the award of
attorney fees and costs in any case in which “the complainant has substantially prevailed.” 703
F.Supp.2d at 1246 (citing 5 U.S.C. § 552(a)(4)(E)). Plaintiff’s attorney, “an experienced
environmental litigator with over 17 years of legal experience,” was awarded $400 per hour. Id.
at 1249. In Nero, attorneys’ fees were awarded pursuant to Colorado statutory provision § 13–
17–201, which provides for the defendant’s attorneys’ fees in tort cases where such case is
dismissed on certain motions of the defendant prior to trial.12 2013 WL 5323191, at *8. That
statutory provision is intended to award attorneys’ fees “in a narrow category of baseless tort
cases, namely those cases that [are] so lacking in substance that they could not survive a motion
to dismiss for failure to state a claim upon which relief could be granted.” Krystkowiak v. W.O.
Brisben Co., Inc., 90 P.3d 859, 869 (Col. 2004). Defendant’s attorney with over 35 years of
experience litigating complex commercial litigation was awarded $500 per hour. Id. at *9. In
MemoryTen and Nova Leasing, attorneys’ fees were awarded pursuant to Rule 37(a)(5)(A) of
the Federal Rules of Civil Procedure, which provides for attorneys’ fees incurred by a movant for
a successful motion to compel discovery. MemoryTen, 2013 WL 1154492, at *1; Nova Leasing,
2013 WL 1302265, at *1. In MemoryTen, a range of $465 to $495 was found reasonable for an
attorney with more than 25 years of experience in complex commercial litigation, including
securities fraud, business torts, and corporate governance disputes. MemoryTen, 2013 WL
1154492, at *3. In Nova Leasing, a rate of $450 per hour was awarded to an attorney with more
than 20 years of experience in matters involving business litigation, including securities fraud.
Nova Leasing, 2013 WL 1302265, at *2. These Colorado cases all involved the determination of
reasonable rates based on the prevailing market rate in the relevant community for attorneys with
comparable skill and experience. Center for Biological Diversity, 703 F.Supp.2d at 1250; Nero,
2013 WL 5323191, at *9; MemoryTen, 2013 WL 1154492, at *2; Nova Leasing, 2013 WL
1302265, at *2.
In vaccine cases, 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.” Avera, 515 F.3d at 1347-48. Thus, before using the above-cited
cases as evidence of petitioner’s local rate, the undersigned must first determine whether they
constitute evidence of the prevailing rates in the relevant “community” for “similar services.”
12
Unless the motion is treated as one for summary judgment. Krystkowiak, 90 P.3d at 869.
10
The Relevant Community
Respondent states that petitioner provided no support for citing cases from the United
States District Court, District of Colorado, which is located in Denver, and contends that
Cheyenne, Wyoming and Denver are not similar localities. Resp. Response to Pet. Supp. Memo.
at 5. Cheyenne, Wyoming, is located only a few miles north of the Colorado border and
approximately 100 miles north of Denver. However, it is true that Denver is a larger
metropolitan area than Cheyenne. In 2015, Cheyenne had an estimated population of
approximately 63,335 whereas Denver had an estimated population of 682,545.13 In addition, a
comparative cost of living calculator for metropolitan areas, which I also consulted in McCulloch
and Garrison, shows a cost of living that is 18.10% greater in Denver than in Laramie,
Wyoming.14 Cheyenne is not listed in the calculator, but Laramie is a city approximately 50
miles northwest of Cheyenne with a population of 32,158.15 In Garrison, petitioner’s counsel
from Twin Falls, Idaho, submitted evidence of rates in Boise, Idaho, which the undersigned
found to be appropriate points of reference for determining counsel’s local rate. 2016 WL
3022076, at *5. However, the difference in cost of living between Twin Falls and Boise was
only 0.33%. Id. at *4. Boise is located approximately 125 miles northwest of Twin Falls, and in
2015 had an estimated population of 218,281 versus Twin Falls’ 47,468.16 Accordingly, it seems
likely that the difference in attorneys’ fees between Denver and Cheyenne is somewhat greater
than the difference in attorneys’ fees between Boise and Twin Falls. With this in mind, however,
I find that cases from the United States District Court, District of Colorado, located in Denver,
could constitute some evidence of the rates in the relevant community for purposes of
determining prevailing rates in Cheyenne, Wyoming, particularly when counsel was unable to
find other cases awarding fees in Wyoming.
Similar Services
When determining the appropriate forum rate for vaccine cases in McCulloch, I noted
that Laffey Matrix rates may more precisely target appropriate forum rates than average
Washington attorney fee rates, which were considerably higher.17 McCulloch, 2015 WL
13
United States Census, QuickFacts, at
http://www.census.gov/quickfacts/table/PST045215/5613900/accessible (last visited Feb. 17, 2017).
14
The Cost of Living Calculator, at http://www.bankrate.com/calculators/savings/moving-cost-of-living-
calculator.aspx (last visited Feb. 13, 2017).
15
United States Census, QuickFacts, supra note 8.
16
Id.
17
Respondent states that for purposes of determining fees, Vaccine Act litigation is not analogous to
complex litigation. Resp. Second Response (citing Rodriguez v. Sec’y of Health & Human Servs., 632
F.3d 1381 (Fed. Cir. 2011)). In Rodriguez, the issue presented was whether vaccine forum rates 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.” 632 F.3d at 1384. The Federal
11
5634323, at *17-18. In McCulloch, I used the Laffey Matrix as a guidepost, but not as prima
facie evidence of the appropriate rate. See id. at *16 n.32 (“Laffey Matrix rates are not awarded
or considered as a prima facie Vaccine Act forum rate here, but its structure is useful for
comparative purposes and its rates are considered here as one of multiple factors in determining
a reasonable rate”).
The Laffey Matrix was originally developed to evaluate fees in a complex employment
discrimination case, and has since been republished annually by the United States Attorney’s
office for the District of Columbia for use in fee-shifting cases.18 See Laffey v. Northwest
Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), affirmed in part, reversed in part on other
grounds, 746 F.2d 4 (D.C.Cir. 1984). The matrix is intended to be used in cases in which a fee
shifting statute permits the prevailing party to recover reasonable attorneys' fees.19 The
explanatory note to the updated Laffey Matrix references Civil Rights cases, Freedom of
Information Act cases, and Equal Access to Justice Act cases by way of example. USAO
Attorney’s Fees Matrix—2015—2017 Explanatory Notes, available at
https://www.justice.gov/usao-dc/civil-division (last accessed Feb. 21, 2017).
In McCulloch, I explained:
It is true that before fees are awarded in fee shifting cases there is
the requirement that the case be won, that negligence or some other
form of liability be proven (in addition to causation in personal
injury cases), and that those cases include the array of available
discovery devices provided under the Federal Rules of Civil
Procedure. However, it should be noted that procedural tasks such
as depositions and motions result in the billing of many additional
hours, and thus the ultimate compensation in those cases is raised
relative to vaccine cases by virtue of the number of hours billed
rather than necessarily the hourly rate.
Circuit upheld the decision of a special master. Id. at 1385 (“As the special master found, Vaccine Act
litigation . . . is not analogous to ‘complex federal litigation’ as described in Laffey so as to justify use of
the Matrix instead of considering the rates charged by skilled Vaccine Act practitioners.”). The
undersigned emphasizes that here, as in McCulloch, rates from other litigation cases are considered as one
factor that may shed light on reasonable rates, along with rates awarded counsel in prior Program cases,
and rates awarded comparably skilled practitioners in Wyoming.
18
The Laffey Matrix methodology has been revised starting with the 2015-2016 year, and the matrix is
now titled the “USAO Attorney’s Fees Matrix.” USAO Attorney’s Fees Matrix—2015—2017, available
at https://www.justice.gov/usao-dc/civil-division (last accessed Feb. 21, 2017).
19
As discussed below, the forum rates established in McCulloch took into account the fact that Laffey
Matrix rates included a risk premium, as the fee shifting under the relevant statutes did not occur unless a
case was won, whereas an attorney in the Vaccine Program is entitled to an award of attorneys’ fees even
if petitioner is not awarded compensation as long as the claim was brought in “good faith” and with a
“reasonable basis.” 2015 WL 5634323, at *18; 42 U.S.C. § 300aa-15(e)(1).
12
Id. In vaccine cases, petitioner does not need to prove negligence or a constitutional violation,
but does need to address difficult issues of causation.
In Garrison, petitioner’s counsel submitted several District Court civil rights cases where
attorneys’ fees were awarded to the prevailing party under fee shifting statutes, which were
“squarely within the type of cases to which Laffey Matrix rates would apply in Washington,
D.C.,” as well as breach of contract actions where a fee shifting statute provided for the award of
attorneys’ fees to the prevailing party, a similar type of fee shifting statute to the Laffey Matrix.
2016 WL 3022076, at *5. In using these cases for comparison, however, I found them
appropriate points of comparison not because they were comparable to Laffey Matrix cases, but
because I found the cited cases to be generally of the same complexity as a vaccine case, and
they provided useful data for the Idaho District Court as to reasonable fees in that area. Id.
(emphasis added).
In the Colorado cases cited by petitioner here, however, most of the fees awarded were
not to plaintiffs’ attorneys’ as compensation for representing a successful party. Rather, with one
exception the fees were imposed as sanctions for discovery violations or for bringing a frivolous
claim. Nero involved individual and putative class action claims for breach of contract,
fraudulent concealment, negligent misrepresentation, bad faith breach of contract, and violations
of the Colorado Consumer Protection Act. 2013 WL 5323191, at *1. Plaintiff’s claims were
dismissed for failure to state claims pursuant to Fed. R. Civ. Pro. 12(b)(6). Id. Attorneys’ fees
were awarded pursuant to a Colorado statutory provision that provides for the defendant’s
attorneys’ fees in certain tort cases where the case is dismissed on motion of the defendant prior
to trial. Thus, Nero does not involve the type of fee-shifting statute contemplated by the
Laffey/USAO Matrix in that it provides for the award of attorneys’ fees “in a narrow category of
baseless tort cases,” with the intention to discourage unnecessary litigation, and thus the
attorneys’ fees awarded thereunder have an element of the punitive. Krystkowiak, 90 P.3d at
869.
MemoryTen involved claims surrounding a breach of subscription agreement, unfair
competition, unjust enrichment, and a declaration that the defendants had “waived their rights to
obtain and acquire collateral” pursuant to certain loan documents. 2013 WL 1154492, at *1.
The defendants counterclaimed for abuse of process, fraud, breach of fiduciary duty, and
violation of the Colorado Uniform Fraudulent Transfer Act. Id. As discussed above, the
attorneys’ fees were awarded when plaintiff failed to produce documents during discovery. Id.
Nova Leasing involved claims that defendant “engaged in a fraudulent scheme to block Nova
from transferring and selling 1.2 million shares of [defendant’s] stock,” and involved violation of
multiple federal regulations and state statutory provisions. Defendant asserted counterclaims for
unjust enrichment, breach of contract, promissory estoppel, breach of fiduciary duty and fraud,
and conspiracy. Again, attorneys’ fees were awarded when the court “found that [defendant] had
engaged in abusive litigation tactics and bad faith in connection with its discovery obligations.”
2013 WL 1302265, at *3. In MemoryTen and Nova Leasing, attorneys’ fees were awarded
pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure, which provides for
attorneys’ fees incurred by a movant in making a successful motion to compel disclosure or
discovery. MemoryTen, 2013 WL 1154492, at *1; Nova Leasing, 2013 WL 1302265, at *1.
Fees awarded under FRCP 37(a)(5)(A) are different from those awarded under a fee-shifting
13
provision permitting attorneys’ fees for the prevailing party. Although an award of fees pursuant
to FRCP 37(a)(5)(A) requires that a party’s motion to compel discovery be granted (or that the
disclosure or requested discovery is provided after the motion was filed), it does not involve a
party prevailing on the underlying claim. Further, like fees awarded against a party pursuing
frivolous litigation, the fees awarded for failure to comply with orders have an element of the
punitive in them. Vaccines cases do not have such an element.
Petitioner did not submit any detail regarding the underlying claims or procedural history
of the FLSA and asbestos cases that Mr. Gage worked on, other than affidavits that confirm his
rate. In the FLSA case, Mr. Gage’s fees were awarded pursuant to the FLSA provision that
provides for attorneys’ fees for the prevailing party, of the type contemplated by the
Laffey/USAO Matric. Pet. Memo. at 4-5. In the asbestos case, Mr. Gage appears to have been
paid a flat hourly rate. Local counsel work usually represents less demanding type of work than
is required of lead counsel in a vaccine case. Finally, Center for Biological Diversity concerned
the withholding of documents in a FOIA response. 703 F.Supp.2d at 1245, 1248. The plaintiff
was awarded attorneys’ fees pursuant to the fee-shifting provisions of the Freedom of
Information Act (FOIA). FOIA cases are specifically referenced in the explanatory note to the
Laffey/USAO Matrix.
The undersigned finds that the asbestos and FLSA rates awarded Mr. Gage and Mr.
Moxley’s affidavit, stating that he currently charges $300 per hour for his hourly criminal
defense, estate planning, administrative hearing, and civil litigation, provide the most reasonable
reference points for determining Mr. Gage’s 2016 local rate. While the other Colorado cases
submitted by Mr. Gage appear to suggest a higher rate, other than in Center for Biological
Diversity, the fees awarded were essentially sanctions for failure to comply with discovery rules
or for frivolous claims. Further, the fees in all of the Colorado cases were awarded to attorneys
in Denver, a larger metropolitan area then Cheyenne with a higher cost of living. While it was
not unreasonable for petitioner to cite Colorado cases in light of the dearth of authority on
attorney fees in Wyoming, the Denver cases must be weighed with the above factors in mind.
Mr. Gage’s asbestos defense work and Mr. Moxley’s hourly rate are not contingent nor
are they based on prevailing on the underlying claim so do not require adjustment for risk.
Adjusted by a 3.7% annual growth rate, the asbestos 2010 rate of $300 per hour would suggest a
2016 rate of $373.04 per hour. Mr. Moxley’s quoted rate of $300 per hour is for 2016. Fees in
the FLSA case, on the other hand, were awarded to Mr. Gage as the prevailing party and need to
be adjusted to reflect the fact that they therefore include a risk premium. In McCulloch, I
concluded that the Laffey Matrix rates included a risk premium, as the fee shifting under the
relevant statutes did not occur unless a case was won. 2015 WL 5634323, at *18. In contrast, an
attorney in the Vaccine Program is entitled to an award of attorneys’ fees even if petitioner is not
awarded compensation as long as the claim was brought in “good faith” and with a “reasonable
basis.” See 42 U.S.C. § 300aa-15(e)(1). For attorneys with more than 20 years of experience,
the Laffey rate for 2014-2015 was $520 per hour. Using the same experience-range frame work
as the Laffey Matrix, I determined that an appropriate rate range for practitioners in the Vaccine
Program with more than 20 years’ experience was $350 to $425. Id. at *19. Thus, comparing
the Laffey rate of $520 per hour for attorneys with 20 years’ experience to the high end of the
McCulloch range, $425 per hour, I effectively eliminated the risk premium by reducing the
14
Laffey rate by approximately 18.3% for vaccine cases.20 I applied this same risk reduction in
Garrison to evaluate local rates based on United States District Court cases submitted by
petitioner. 2016 WL 3022076, at *6. If an 18.3% risk reduction is applied to reduce the rate
awarded in the FLSA case, and an annual rate of growth of 3.7% is also applied to bring the
2010 rate to present, the 2016 rate would be $304.80.
b. Forum Rates
Petitioner requests a forum rate of $387.50 per hour for Mr. Gage.21 See generally Pet.
Mot., Tab C. Reasonable 2014-2015 forum rate experience-based ranges were recently set by
the undersigned in McCulloch. 2015 WL 5634323. In McCulloch, I found $350 to $425 to be a
reasonable forum rate range for attorneys with more than 20 years of experience, depending on
the special master’s judgment of the attorneys’ years of experience in practice and in the Vaccine
Program in particular, quality of advocacy in vaccine cases, and reputation in the legal
community and community at large.22 McCulloch, 2015 WL 5634323, at *17-*19. The range of
$350 to $425 found in McCulloch was designed to allow considerable discretion to the special
masters to determine an appropriate forum rate, and contemplated a “multi-factorial” analysis.
McCulloch, 2015 WL 5634323, at *17.
Mr. Gage was admitted to the bar in 1990, and thus has approximately 26 years of
experience. Pet. Mot. at 3, 6. He has been practicing in the Program for the duration of his legal
20
This calculation represents the percentage by which the Laffey Matrix rate was reduced to arrive at
vaccine case rates:
% decrease = [100 (Laffey rate – Vaccine rate)] / Laffey rate
After McCulloch, the Laffey Matrix methodology was revised starting with the 2015-2016 year, and the
matrix is now titled the “USAO Attorney’s Fees Matrix.” The new matrix has a category for 21-30 years
of experience and a separate category for 31+ years of experience. The rate for attorneys with 21-30
years of experience for 2015-2016 is $530. Id. Because the Laffey Matrix annual rate increases were
calculated using the CPI-U, the USAO Matrix annual rate increase is calculated using the PPI-OL, and
McCulloch applied a 3.7% annual increase based on the rate of growth in attorneys’ fees, the percentage
risk premium reduction varies depending on what years are used for comparison. For example,
comparing the 2016 USAO matrix rate of $530 per hour to an adjusted 2016 McCulloch rate of $441 per
hour (a 3.7% growth rate applied to the 2015 rate of $425 per hour), the risk premium for the USAO rate
is 16.8%, slightly lower than the 2015 risk premium of 18.3%. Nevertheless, I find that 18.3% is a
reasonable risk premium to apply for all years.
21
In her supplemental memorandum, petitioner states that the forum rate is approximately $400 per hour.
See generally Pet. Mot., Tab C; Pet. Supp. Memo. at 2, 3. Respondent compares Mr. Gage’s local rate to
a forum rate of $400 per hour, a rate “at the high end of the range for attorneys with experience similar to
that of Mr. Gage.” Respondent’s Second Response at 7.
22
Since McCulloch, the Office of Special Masters posted a forum rate schedule, which states that for
2015-2016, the appropriate rate range for an attorney with 20-30 years of experience is $350 to $415 per
hour. See http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2015-
2016.pdf. For purposes of this decision, the undersigned relies on the rate ranges as set forth in
McCulloch.
15
career, including as a summer intern in 1988. Id. at 3. Mr. Gage states that he presently has over
50 active Program cases and estimates that he has had more than 500 total cases in the Program.
Id. at 4. Petitioner argues that Mr. Gage is entitled to a rate on the high end of the forum rate
range for attorneys with similar experience because of his substantial experience in the Program
and the complex nature of Mr. Gage’s cases. Id. at 6. Accordingly, petitioner’s counsel billed at
a rate of $387.50 per hour, which is the median of the McCulloch forum rate range for attorneys
with more than 20 years of experience. Petitioner also notes that this rate was recently awarded
to Curtis Webb, a Program attorney in Twin Falls, Idaho, whose rates have “mirrored [Mr.
Gage’s] for a number of years.” Pet. Memo. at 6 (referencing Garrison v. Sec’y of Health &
Human Servs., No. 14-762V, 2016 WL 3022076 (Fed. Cl. Spec. Mstr. Apr. 29, 2016), aff’d, 128
Fed. Cl. 99 (2016)). The undersigned agrees that Mr. Webb has similar years of overall legal
experience to Mr. Gage, similar experience with vaccine cases, and a similar reputation for
quality of work in the Program. See Garrison 2016 WL 3022076, at *8 (stating that Mr. Webb
has 31 years of experience in the legal profession, 27 years of experience representing more than
275 petitioners in the Program, and Special Masters have noted that his work is of high quality).
Accordingly, I find that a reasonable forum rate for Mr. Gage would be $387.50 per hour.
c. Local Versus Forum Rates
Petitioner argues that there is not a very significant difference between the local
Cheyenne, Wyoming, and Washington, D.C., forum rates, and that petitioner’s counsel should
therefore receive forum rates. In support of her position, petitioner cites McCulloch, 2015 WL
5634323 and Garrison, 2016 WL 3022076, aff’d, 128 Fed. Cl. 99. In McCulloch, I determined
reasonable 2014-2015 forum rates in the context of a fee award to the Boston firm Conway,
Homer & Chin-Caplan. See 2015 WL 5634323, at *19. In Garrison, I found that Curtis Webb,
of Twin Falls, Idaho, was entitled to forum rates because local Twin Falls rates were not “very
significantly different” than the McCulloch rates. See Garrison, 2016 WL 3022076, at *7.
Petitioner states that “[i]f the Special Master were to apply the reasoning of [McCulloch and
Garrison] to this case, then petitioner’s attorney should receive forum rates.” Pet. Mot. at 1-2.
As petitioner notes, in Davis County, the local rate was “approximately 70% higher” than
the local rate and in Avera, the requested forum rate of $598 per hour was “nearly three times”
the local rate of $200 per hour.23 Pet. Memo. at 3; Pet. Supp. Memo. at 5; Davis County, 169
F.3d at 757; Avera, 515 F.3d at 1349-50. In Masias, the difference between the local rate of
$220 and the forum rate of $350 was 59%. 634 F.3d at 1285-87. In contrast, in Garrison, the
difference between the local and median forum rate was only 18.5%. 2016 WL 3022076, at *7.
In finding that the 18.5% difference was not “very significant,” the undersigned stated:
In Avera, the Federal Circuit did not say that the forum rate should
be used except when the local rate is “different” or even
“significantly different.” Rather, the court said the forum rate
23
The undersigned notes that in Avera, the difference between local and forum rates was based on the
requested forum rate, not a determination as to what Mr. Moxley’s forum rates actually would be. Cases
following Avera, however, have generally based their analysis on a determination of a reasonable forum
rate.
16
should be used except where the local rate is “very significantly
different.” The cases in which very significant differences have
been found were based on rate differentials higher than the
difference in this case, as explained above.
Id. Petitioner asserts that like in Garrison, Mr. Gage’s local rate is “different” from the forum
rate, but not significantly so, and he should therefore be awarded forum rates. Pet. Memo. at 5-6.
In their briefs, the parties present several different calculations of the difference between
local and forum rates, which result in inconsistent percentage difference calculations. In her first
memorandum, petitioner compares the median forum rate for attorney’s with more than 20 years
of experience, $387.50 per hour, to a local rate of $295.55 based on applying a growth rate to the
2014-2015 local rate of $285 per hour awarded in Carpenter. Pet. Memo. at 5. Petitioner
concludes that the median forum rate is 24% greater than Mr. Gage’s local rate. Id. However,
petitioner’s calculation of the difference between the local and forum rate was not performed
consistently with the formula used in Garrison: % increase or “difference” = [(forum rate -
local rate) / local rate] 100. 2016 WL 3022076, at *7 n.12. As I stated in Garrison:
In Davis County, the court determined that the forum rate was 70%
higher than the local rate, and in Avera the court determined that the
forum rate was nearly three times higher than the local rate. In
Masias, where the local rate was $220 per hour and the forum rate
was $350 per hour, the special master found that there was a 59%
difference between local and forum rates. These cases calculate the
“difference” in rates based on the percentage by which the forum
rate is an increase over the local rate.
Id. If the correct Garrison formula is used, the difference between a local rate of $295.55 and a
forum rate of $387.50 is 31%. Respondent, on the other hand, contends that the local rate
supported for Mr. Gage is $300 per hour, and that there is a significant difference between a
local rate of $300 per hour and a forum rate of $400, a forum rate at the high end of the range for
attorneys with experience similar to Mr. Gage’s. Respondent’s Second Response at 7. Using the
Garrison formula, the difference between a local rate of $300 per hour and a forum rate of $400
per hour is 33.33%.
As discussed above, however, I have found that a reasonable local rate for Mr. Gage
would be $311 per hour and a reasonable forum rate would be $387.50 per hour. Using the
Garrison formula, the difference between the median and requested forum rate of $387.50 per
hour and a local rate of $310 per hour is 25%. The difference between the forum rate asserted by
respondent, $400 per hour, and a local rate of $311 is 28.62%. The difference between the
highest end of the McCulloch range for attorneys with more than 20 years of experience, $425
per hour, and a local rate of $311 per hour is 36.66%.
As I stated in Garrison, the rate differences in Davis County and Avera are clearly very
significant, but those decisions do not provide guidance on where to draw the line as to what
constitutes a “very significant” difference in less extreme cases. In Hall, the Federal Circuit
17
declined to set a bright line rule as to what constitutes a very significant difference and stated
that special masters should “continue to rely on the evidence before them and their own trial
experience in similar litigations in making such a determination.” 640 F.3d at 1357. However,
in Auch, the special master stated that “as a general rule of thumb, any difference over 25
percent meets the standard.” 2016 WL 3944701, at *11. While no bright line rule as to what
constitutes a very significant difference exists, in this case the evidence to support petitioner’s
assertion that the local rate is higher than past Program awards would suggest is relatively weak.
As discussed above, the cases cited by petitioner largely involve very different fee-shifting
situations than vaccine work and are from a significantly larger metropolitan area than
Cheyenne, Wyoming. Given the evidence submitted and the decisions of other special masters
regarding Cheyenne rates, the undersigned finds that petitioner has not demonstrated that rates in
Cheyenne, Wyoming, rise to a level where they are not very significantly different than forum
rates. Accordingly, Mr. Gage will be compensated at his local rate, $311 per hour.
d. Associate and Paralegal Rates
In addition to Mr. Gage’s fees, petitioner also requests attorneys’ fees for one associate
and three paralegals. Pet. Mot. at 6-7. Petitioner requests a rate of $200 per hour for the
associate, Dustin Lujan. Pet. Memo. at 6. Mr. Lujan graduated from law school in 2015 and is a
member of the Wyoming bar. Id. In Auch, Mr. Lujan was awarded $145 per hour. 2016 WL
3944701, at *12. In that case, petitioner did not submit information about Mr. Lujan’s
background or experience necessary to establish a higher hourly rate. Id. Although petitioner
has here noted Mr. Lujan’s experience, he has only been in practice for less than 2 years.
Accordingly, the undersigned does not find reason to depart far from the rate of $145 per hour
awarded in Auch for 2015. The undersigned finds a 2015 rate of $150 per hour reasonable for
Mr. Lujan. Mr. Lujan only performed work on this case in 2015. Pet. Mot. Tab D, at 11.
Petitioner requests a rate of $135 per hour for paralegals Susan McNair and Brian Vance.
Pet. Memo. at 6-7. Ms. McNair has an associate’s degree as a paralegal and has worked at Mr.
Gage’s firm since receiving that degree three years ago. Id. at 7. Mr. Vance has an associate’s
degree as a paralegal and has worked at Mr. Gage’s firm since receiving that degree two years
ago. Id. In support of the requested paralegal rate of $135 per hour, petitioner submitted an
affidavit from Matthew Micheli, a Wyoming attorney, stating that a rate of $125 per hour is
“very reasonable for paralegal work in Wyoming,” and that as corporate general counsel he has
“routinely approved rates as high as $175 per hour.” Pet. Supp. Memo., Ex. 3. Petitioner also
submitted an affidavit from Wyoming attorney Michael Rosenthal, who states that the majority
of work done by his paralegal is billed at $100 per hour, but in about 20% of cases is billed at
$125 per hour. Pet. Ex. 15. Petitioner also submitted the NALA paralegal association 2016
National Utilization & Compensation Survey Report. Pet. Ex. 17. This report states that in the
Rocky Mountains region, the average hourly billing rate in 2016 was $112 per hour. Id. at 2.
Firms with 2-5 people billed an average rate of $129 per hour in 2016.24 Id. Although petitioner
argues that counsel should receive forum rates, and the requested paralegal rate of $135 appears
to be based on forum rates, the submitted information bears on local Wyoming paralegal rates.
None of the information submitted, however, notes the experience of the paralegals involved. In
24
According to the website for Mr. Gage’s firm, the firm has three attorneys. See Attorney and Staff
Profiles, http://www.richardgage.net/AttorneyProfiles.html (last visited Mar. 20, 2017).
18
Auch, the special master found that the requested $135 per hour rate was well outside the range
for a paralegal practicing in Cheyenne. 2016 WL 3944701, at *14. The special master awarded
a rate of $112 per hour for all paralegal work performed in 2015. Id. at *15. It does not appear
that petitioner submitted information regarding local paralegal rates in Cheyenne in Auch.
Rather, the awarded rates were based on petitioner’s initial fee request, and were “apparently
based on a local rate.” See id. at *14. Based on the information submitted in this case and the
experience and qualifications of Ms. McNair and Mr. Vance, the undersigned finds that a
reasonable rate for their work performed on this case is $120 per hour.
Finally, petitioner requests $112 per hour for paralegal Anne Hess.25 Pet. Memo. at 7.
Ms. Hess has an associate’s degree in business administration and a paralegal certification and
has worked at Mr. Gage’s firm for a short time. Id. Based on Ms. Hess’ experience and
qualifications, and the evidence submitted regarding paralegal rates, the undersigned finds a rate
of $100 per hour reasonable.
e. Hours
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983)).
A special master has “wide discretion in determining the reasonableness” of attorneys'
fees and costs. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33
F.3d 1375 (Fed. Cir. 1994). In making reductions, a life-by-line evaluation of the fee application
is not required. Wasson, 24 Cl. Ct. at 484. Special masters may rely on their experience with the
Vaccine Act and its attorneys to determine the reasonable number of hours expended. Id. Just as
“[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours
claimed in attorneys’ fee requests . . . [v]accine program special masters are also entitled to use
their prior experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.
Petitioner requests compensation for 11.30 hours of work performed by Mr. Gage, 1.60
hours of work performed by Mr. Lujan, 4.40 hours of work performed by Ms. McNair, 33.30
hours of work performed by Mr. Vance, and 1.00 hour of work performed by Ms. Hess. Pet.
Mot. Tab C-E. Petitioner submitted an adequate billing log, which included the hours billed,
date of service, and name of person providing the service. See Pet. Mot. Tab E. On review of
petitioner’s application and billing log, I find the number of hours expended reasonable.
f. Costs
25
In her memorandum, petitioner states that she requests a rate of $110 per hour, but Ms. Hess’ work was
actually billed at $112 per hour. Pet. Mot. Tab E at 16.
19
The requirement that attorneys’ fees be reasonable also applies to costs. Perreira, 27 Fed.
Cl. at 34 (“Not only must any request for attorneys’ fees be reasonable, so must any request for
reimbursement of costs”). Petitioner requests $3,746.99 for attorneys’ costs. Pet. Mot. Tab A,
E. The requested costs consist primarily of medical record costs, copying costs, the filing fee,
and the cost of expert review. Pet. Mot. Tab E. Upon review, I find the requested costs
reasonable. Accordingly, as requested, I will award $3,746.99 in attorneys’ costs.
III. Conclusion
Attorneys’ fees and costs will be awarded as follows:
Requested Attorneys’ Fees: $9,900.25
Deductions: $1,521.95
Mr. Gage: $864.45
Mr. Lujan: $80.00
Ms. McNair $66.00
Mr. Vance $499.50
Ms. Hess $12.00
Attorneys’ Fees Awarded: $8,378.30
Costs Awarded: $3,746.99
Total Fees & Costs Awarded: $12,125.29
Accordingly, the undersigned awards:
(1) A lump sum of $12,125.29 in the form of a check payable jointly to petitioner
and petitioner’s counsel of record, Mr. Richard Gage, for attorneys’ fees and
costs.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.26
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
26
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
20