# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * * *

DONALD R. MASIAS, * No. 99

- 697V

* Senior Judge Robert H. Hodges, Jr.

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: May 1 4

, 2013

*

SECRETARY OF HEALTH * A ttorneys ’ fees and costs ; reasonable

AND HUMAN SERVICES, * hourly rate; reasonable number of

* hours; supplemental request

Respondent. *

* * * * * * * * * * * * * * * * * * * * * * *

Robert T. Moxley , Esq., Robert T. Moxley, P.C., Cheyenne, Wyoming, for Petitioner;

Catharine Reeves , Esq., U.S. Department of Justice, Washington, D.C., for Respondent

.

PUBLISHED D ECISION AWARDING ATTORNEYS ’ FEES ON

TH IRD SUPPLEMENTAL REQUEST FOR ATTORNEYS ’ FEES *

After approximately seven years of litigation devoted to attorneys ’ fees, this case

appears ready to conclude. Mr. Masias filed his third supplemental request for attorneys ’

fees, seeking compensation for 35 hours of attorney work at $300 per hour. The total

request is $10,500. Exhibit 100.

The Secretary opposes the request, in part. The Secretary argues that the number

of hours requested for certain activities is unreasonable and the hourly rate is no t

supported.

Because the Secretary ’ s objections are valid, the amount requested is reduced to a

reasonable amount. The total awarded is $ 8

, 384

.

* T he E

- Government Act of 2002, Pub. L. No. 107

- 347, 116 Stat. 2899, 2913

(Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to

Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of

medical information or othe r information described in 42 U.S.C. § 300aa

- 12(d)(4). Any

redactions ordered by the special master will appear in the document posted on the

website.2 DISCUSSION

The Federal Circuit reviewed how to determine a reasonable amount of attorneys ’

fees in Avera v. Sec ’ y of Health & Human Serv s. , 515 F.3d 1343 (Fed. Cir. 2008), where

it endorsed the lodestar method. Pursuant to this approach, “a court first determines an

initial estimate of a reasonable attorneys ’ fee by multiplying the number of hours

reas onably expended on the litigation times a reasonable hourly rate.” Id. at 1347

- 48.

After this preliminary determination, the court “may then make an upward or downward

departure to the fee award based on other specific findings.” Id. (quotation marks an d

citation omitted).

A reasonable hourly rate for Mr. Masias ’ s attorney has been discussed in previous

adjudications in this case. Most recently, the undersigned found that a reasonable hourly

rate for Mr. Moxley ’ s work in 2011 was $257.00. Masias v. S ec ’ y of Health & Human

Servs. , No. 99

- 697V , 20 13 WL 658439 , at * 4 (Fed. Cl. Spec. Mstr. Jan. 31, 2013).

This rate needs to be adjusted for inflation. According to data released by the state

of Wyoming, the rate of inflation for Wyoming in 2012 was 2.1 percent

. Consequently, a

reasonable hourly rate for Mr. Moxley in 2012 is $262.00 ($257 x 1.021 = $ 262. 40 )

.

The second variable in the lodestar formula is the reasonable number of hours.

The pending invoice covers work performed in 2012, primarily on a motion seeking

correction of clerical errors pursuant to Rule 60 of the Rules of the Court of Federal

Claims a nd a motion seeking review of a fee s adjudication. The total amount of time

requested is 35 hours. Exhibit 100.

The Secretary argues that the amount of time spent on some activities, such as an

attorney spending 0.3 hours (or 18 minutes) downloading a one page order, was

excessive. The Secretary ’ s objections are persuasive. Consequently, the number of

hours is reduced from 35 to 32.

The ensuing lodestar calculati on shows that the presumptively reasonable amount

is $ 8

, 384 ($262 x 32) . There is no basis to depart from this number.

CONCLUSION

Accordingly, petitioner is awarded an additional $8,384 .00 in attorneys ’ fees

in the form of a check payable jointly to petitioner and petitioner ’ s attorney, Robert

T. Moxley.3

I n the absence of a motion for review filed under RCFC

, Appendix B, the clerk is

directed to enter judgment according to this order. 1 Pursuant to Vaccine Rule 28.1, the

clerk is instructed to provide a copy of this decision to the presiding judge.

IT IS SO ORDERED.

s/ Christian J. Moran

Christian J. Moran

Special Master

1 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by

filing a joint notice re nouncing the right to seek review.