VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_06-vv-00559 Package ID: USCOURTS-cofc-1_06-vv-00559 Petitioner: Giavanna Maria Rodriguez Filed: 2006-07-31 Decided: 2010-02-22 Vaccine: Vaccination date: Condition: encephalopathy Outcome: compensated Award amount USD: 48381 AI-assisted case summary: Giavanna Maria Rodriguez, an infant, received a vaccination and subsequently died from an encephalopathy. Her parents, Gabriel Gene and Jennifer Ann Rodriguez, filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986 on July 31, 2006. A settlement was reached, and the Special Master memorialized the joint stipulation and awarded compensation on November 27, 2007. The case then proceeded to an application for attorneys' fees and costs. Petitioner's attorney, John E. McHugh, initially requested $65,925 in fees at a $450 hourly rate. This request was later amended to $94,642, with increased hourly rates. Respondent argued that the hourly rate was unreasonable and some hours were improper. Petitioner also sought fees for attorney Gilbert Gaynor, who assisted with a supplemental fee application, requesting $10,395 based on his hourly rates of $450-$475. The Special Master awarded petitioner $42,270 in fees for Mr. McHugh and $6,111 for Mr. Gaynor, totaling $48,381, by reducing the requested hourly rates and hours. Petitioner sought review of the Special Master's decision regarding attorneys' fees and costs, arguing that the hourly rates and hours awarded were too low. The Court of Federal Claims reviewed the Special Master's decision, addressing three objections: the hourly rate determination, the reduction of Mr. McHugh's hours, and the Special Master's commentary on the attorneys' advocacy. The court upheld the Special Master's determination of reasonable hourly rates, finding that the Laffey matrix was not applicable to Vaccine Act litigation and that the Special Master appropriately considered other evidence to establish the forum rate. The court also found no abuse of discretion in the Special Master's reduction of Mr. McHugh's hours for preparing a posthearing memorandum. Finally, the court determined it lacked jurisdiction to review the Special Master's commentary on the attorneys' advocacy, but even if it had jurisdiction, it would find the commentary largely supported by the record, with a minor attribution error regarding Mr. Gaynor. The court denied petitioner's motion for review and directed the clerk to enter judgment. Theory of causation field: The public text does not detail the specific vaccine(s) administered or the date(s) of vaccination. Giavanna Maria Rodriguez, an infant, allegedly suffered from an encephalopathy following vaccination, which led to her death. The petition was filed under the National Childhood Vaccine Injury Act of 1986. The Special Master found that Giavanna suffered from an injury listed on the Vaccine Injury Table, entitling her estate to compensation. The parties negotiated a settlement, and the Special Master memorialized the joint stipulation and awarded compensation. The case then proceeded to an application for attorneys' fees and costs. Petitioner's attorneys were John E. McHugh and Gilbert Gaynor. Respondent was the Secretary of Health and Human Services. The Special Master awarded $42,270 in fees for Mr. McHugh and $6,111 for Mr. Gaynor, totaling $48,381. Petitioner sought review of the attorneys' fees award, arguing the rates and hours were too low. The Court of Federal Claims denied the motion for review, upholding the Special Master's decision on hourly rates and hours, and found it lacked jurisdiction to review the Special Master's commentary on the attorneys' advocacy. The theory of causation for the injury itself is not detailed in the provided text, beyond it being an encephalopathy and listed on the Vaccine Injury Table. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_06-vv-00559-cl6659952 Date issued/filed: 2010-02-22 Pages: 1 Docket text: lead-opinion -------------------------------------------------------------------------------- OPINION AND ORDER SWEENEY, Judge. Petitioner seeks an award of attorneys’ fees and costs under the National Childhood Vaccine Injury Act of 1986 (“Vaccine Act”), 42 U.S.C. §§ 300aa-l to -34 (2006). In a July 27, 2009 decision, the special master awarded petitioner fees and costs in an amount significantly less than what he requested. Before the court is petitioner’s motion for review of the special master’s decision and petitioner’s request for judicial notice. For the reasons set forth below, the court grants in part and denies in part petitioner’s request for judicial notice and denies petitioner’s motion for review. I. BACKGROUND2 A. Petition for Compensation After receiving a vaccination, Giavanna Maria Rodriguez suffered from an encephalopathy and subsequently died. Rodriguez v. Sec’y of HHS, No. 06-559V, 2009 WL 2568468, at *17 & n. 50 (Fed.Cl.Spec.Mstr. July 27, 2009). On July 31, 2006, her parents, Gabriel Gene and Jennifer Ann Rodriguez, filed a petition for compensation under the Vaccine Act.3 Id. at *1. The special master conducted an entitlement hearing on May 18, 2007, in Philadelphia, Pennsylvania. Id. After the hearing, the special master ordered respondent to show cause why she should not find that Giavanna suffered from an injury listed on the Vaccine Injury Table (“Table”), entitling her estate to compensation.'4 Id. As a result, the parties negotiated a settlement and executed a joint stipulation. Id. In a November 27, 2007 decision, the special master memorialized the joint stipulation and awarded the agreed amount of compensation. Id. B. Application for Attorneys’ Fees and Costs Petitioner filed his initial application for fees and costs on February 28, 2008, requesting, among other things, $65,925 in fees for his attorney,5 John E. McHugh, a solo practitioner in New York City. Id. at *1, 3 & n. 15. Petitioner requested that Mr. McHugh be compensated at a $450 hourly rate, which was Mr. McHugh’s actual billing rate. Id. at *3. In her opposition to petitioner’s application, respondent argued that the $450 hourly rate was unreasonable and that some of the hours claimed were improper. Id. at *1. Petitioner defended the $450 hourly rate in his reply brief. Id. However, three days later, petitioner filed an amended reply that increased the requested hourly rate to $598 *459for work performed in May 2006, $614 for work performed between June 2006 and May 2007, and $645 for work performed after May 2007. Id. Overall, petitioner’s fee request increased to $94,642.6 Id. at *1. In support of his amended fee request, petitioner submitted the declarations of his mother and Mr. McHugh, as well as copies of declarations previously filed in other Vaccine Act eases. Id. at *4-5. Respondent, in a surre-ply, requested that the special master determine a reasonable hourly rate based on her experience, but did not suggest what that reasonable rate might be. Id. at *1, 5. Supporting respondent’s surreply was a declaration from Daniel F. Van Horn, a Deputy Chief in the Civil Division of the United States Attorney’s Office for the District of Columbia.7 Id. at *5. After reviewing the parties’ submissions, the special master, on July 17, 2008, directed the parties to file “additional evidence focused on negotiated hourly rates for attorneys of Mr. McHugh’s skill, experience, and reputation; fees paid to attorneys in the Washington, DC area; and argument to assist in determining the relevant legal community for purposes of determining the forum rate for attorney fees.” Id. (footnotes omitted). The special master noted that her request for information regarding hourly rates encompassing the entire Washington, DC area, rather than just the District of Columbia proper, was guided by the fact that very few attorneys in the District of Columbia represent Vaccine Act petitioners. Id. at *1 n. 10. In responding to the special master’s order, petitioner supplied affidavits from Clifford Shoemaker, an attorney in Vienna, Virginia whose practice focuses on Vaccine Act litigation, and reserved the right to file a supplemental fee application. Id. at *1. Respondent attached five exhibits to her response, including one exhibit describing the hourly rates she negotiated with Professor Peter Meyers, a Distinct of Columbia attorney engaged in Vaccine Act litigation. Id. at *1, 6. At the direction of the special master, petitioner filed his supplemental fee application on May 7, 2009. Id. at *1. Petitioner requested $5,787.50 in fees for preparing a response to the special master’s July 17, 2008 order and $4,607.50 in fees related to the supplemental fee application. Id. at *9. All $10,395 of these fees were incurred by Gilbert Gaynor, an attorney retained by Mr. McHugh to respond to the special master’s July 17, 2008 order and whose law practice involves “complex litigation” in the federal courts of the Central District of California. Id. Mr. Gaynor indicated that his fee request reflected his 2008 hourly rate of $450 and 2009 hourly rate of $475. Id. Petitioner submitted the declarations from three attorneys in support of his supplemental fee application — those of Mr. Gaynor, Deborah Drooz, and Tarik Adlai. Id. In her opposition to petitioner’s supplemental fee application, respondent objected to the hourly rates charged by Mr. Gaynor and suggested that the proper hourly rate was $252. Id. In support of her opposition, respondent submitted the declaration of attorney Daniel Rezneek. Id. at *6. Briefing on the supplemental fee application concluded on June 29, 2009. Id. at *1. C. Special Master’s Decision and Motion for Review The special master ruled on petitioner’s application for attorneys’ fees and costs, as amended and supplemented, on July 27, 2009. Id. at *1-24. She addressed five broad issues, three of which are relevant to the instant motion: (1) Mr. McHugh’s hourly rate; (2) the reasonableness of some of the hours claimed by Mr. McHugh; and (3) Mr. Gaynor’s hourly rate. Id. at *3-7, 9-10. Ultimately, she reduced the hourly rate requested by petitioner for Mr. McHugh’s services to $310 for 2006, $320 for 2007, $330 for 2008, and $335 for 2009. Id. at *23. She similarly reduced the hourly rate requested by petitioner for Mr. Gaynor’s services to $270 for 2008 and $275 for 2009. Id. at *24. Finally, she reduced the number of hours for *460which Mr. McHugh could receive compensation. Id. at *20. Given these and other reductions, she awarded petitioner $42,270 in fees for Mr. McHugh and $6,111 in fees for Mr. Gaynor. Id. at *23-24. Petitioner filed a timely motion for review, to which respondent responded. While the motion for review was pending before the court, petitioner filed a request for judicial notice. The court heard argument on both motions on January 15, 2009, and is now prepared to rule. II. REQUEST FOR JUDICIAL NOTICE As a threshold matter, the court addresses petitioner’s request for judicial notice, which concerns the following documents: (1) a vacancy announcement for an attorney in the Office of Vaccine Litigation in the Torts Branch of the Civil Division of the United States Department of Justice, as it appeared on November 5, 2009; (2) sections 4-5.421 and 4-5.422 of the United States Attorneys’ Manual, effective December 22, 2007; and (3) the decision in Walmsley v. Secretary of HHS, No. 06-270V, 2009 WL 4064105 (Fed.Cl.Spec.Mstr. Nov. 6, 2009). Petitioner argues that each of the documents is directly relevant to the issues before the court and contain facts not subject to reasonable dispute. In particular, he contends that the contents of the vacancy announcement and the United States Attorneys’ Manual relate to the issue of the complexity of Vaccine Act litigation and that the Walmsley decision concerns some of the same factual and legal issues presented in this case. At oral argument, respondent objected to the taking of judicial notice of the vacancy announcement and the excerpts from the United States Attorneys’ Manual, but not the Walmsley decision. The court takes judicial notice of the decision in Walmsley, but declines to do so with the other documents submitted by petitioner. The taking of judicial notice is governed by Federal Rule of Evidence 201. Although the Federal Rules of Evidence are not formally applied in Vaccine Act proceedings, see 42 U.S.C. § 300aa-12(d)(2)(B); Vaccine Rule 8(b)(1); Munn v. Sec’y of HHS, 970 F.2d 863, 873 (Fed.Cir.1992), the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has approved the taking of judicial notice in a case arising under the Vaccine Act, see Hines ex rel. Sevier v. Sec’y of HHS, 940 F.2d 1518, 1525-26 (Fed.Cir.1991). The court may take judicial notice only of adjudicative facts. Fed.R.Evid. 201(a). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). The court “shall take judicial notice if requested by a party and supplied with the necessary information.” Fed.R.Evid. 201(d). “Judicial notice may be taken at any stage of the proceeding.” Fed.R.Evid. 201(e). The court has no difficulty taking judicial notice of the Walmsley decision. See, e.g., McTernan v. City of York, Pennsylvania, 577 F.3d 521, 526 (3d Cir.2009) (“[A] court may take judicial notice of a prior judicial opinion.”); cf. Hayward v. Marshall, 512 F.3d 536, 541 n. 5 (9th Cir.2008) (treating a request for judicial notice of two recent court decisions as citations to supplemental authority). However, taking judicial notice of the vacancy announcement and the United States Attorneys’ Manual is inappropriate. Petitioner is using Federal Rule of Evidence 201 in an attempt to introduce evidence into the record that he should have presented in the first instance to the special master. The language highlighted by petitioner in the vacancy announcement has appeared in prior vacancy announcements for attorney positions in the Office of Vaccine Litigation, including those posted during the time when this case was before the special master. See Oral Argument, Jan. 15, 2010, at 10:50:06 (reflecting respondent’s counsel’s assertion that the vacancy announcement to which he responded two years ago contained similar language). Similarly, as conceded by petitioner, the cited sections of the United States Attorneys’ Manual were effective well before the special master issued her decision. However, petitioner offered neither document as evidence in the proceedings before the special master. *461Although the court may take judicial notice in exercising its review function, see Fed.R.Evid. 201(f), such an action cannot serve as “a remedy for a party’s failure to introduce readily available evidence of crucial facts” before the special master, Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence Manual § 4.05 (2009) (citing Buchanan v. Reliance Ins. Co. (In re Color Tile, Inc.), 475 F.3d 508, 510 (3d Cir.2007); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 n. 18 (9th Cir.2004)). Indeed, in considering a motion for review, the United States Court of Federal Claims (“Court of Federal Claims”) is constrained to a review of the record before the special master. See 42 U.S.C. § 300aa-12(e)(2) (“Upon the filing of a motion [for review] with respect to a petition, the United States Court of Federal Claims shall have jurisdiction to undertake a review of the record of the proceedings ....”) cf. Turner ex rel. Turner v. Sec’y of HHS, 268 F.3d 1334, 1339 (Fed.Cir.2001) (“The jurisdiction of the Court of Federal Claims to review the special master’s findings of fact is thus confined to reviewing the record under the deferential standard of review in § 12(e)(2)(B).”); Whitecotton, by Whitecotton v. Sec’y of HHS, 81 F.3d 1099, 1108 (Fed.Cir.1996) (“Congress desired the special masters to have very wide discretion with respect to the evidence they would consider....”). Because neither the vacancy announcement nor the United States Attorneys’ Manual was part of the record before the special master, the court declines to take judicial notice of them for purposes of ruling on petitioner’s motion for review. Accordingly, petitioner’s request for judicial notice is granted only with respect to the Walmsley decision. The court thus turns to petitioner’s motion for review. III. MOTION FOR REVIEW A. Standard of Review The Court of Federal Claims has jurisdiction to review the decisions of special masters in Vaccine Act cases, 42 U.S.C. § 300aa-12(e), including decisions awarding attorneys’ fees and costs, Vaccine Rules 13(b), 23(a). Upon reviewing the record of proceedings before the special master, the court 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 conclusion 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). The standards set forth in section 12(e)(2)(B) “vary in application as well as degree of deference.... Fact findings are reviewed ... under the arbitrary and capricious standard; legal questions under the ‘not in accordance with lav/ standard; and discretionary rulings under the abuse of discretion standard.” Munn, 970 F.2d at 870 n. 10. The “arbitrary and capricious” standard “is a highly deferential standard of review. 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.” Hines, 940 F.2d at 1528; accord Lampe v. Sec’y of HHS, 219 F.3d 1357, 1360 (Fed.Cir.2000) (“The arbitrary and capricious standard of review is difficult for an appellant to satisfy with respect to any issue-”). In contrast, under the “not in accordance with law” standard, the court reviews the special master’s legal conclusions de novo. Saunders ex rel. Saunders v. Sec’y of HHS, 25 F.3d 1031, 1033 (Fed.Cir.1994); cf. Perreira ex rel. Perreira v. Sec’y of HHS, 27 Fed.Cl. 29, 32 (1992) (“On issues of law, recognition should be given to the special master’s expertise in the development of the procedures in this novel Program. A decision on issues of law applicable to the Program should be overturned only when error is unmistakably clear.”), aff'd, 33 F.3d 1375 (Fed.Cir.1994). And, an abuse of discretion occurs when a “decision is based on clearly erroneous findings of fact, is based on erroneous interpretations of the law, or is clearly unreasonable, arbitrary or fanciful.” Cybor *462Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1460 (Fed.Cir.1998) (en banc); accord Hendler v. United States, 962 F.2d 1364, 1380 (Fed.Cir.1991) (“An abuse of discretion may be found when (1) the court’s decision is clearly unreasonable, arbitrary, or fanciful; (2) the decision is based on an erroneous conclusion of the law; (3) the court’s findings are clearly erroneous; or (4) the record contains no evidence upon which the court rationally could have based its decision.”), quoted in Murphy ex rel. Murphy v. Sec’y of HHS, 30 Fed.Cl. 60, 61 (1993). With respect to an award of attorneys’ fees and costs, the Vaccine Act provides: (1) In awarding compensation on a petition ... the special master 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 compensation, the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master 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. 42 U.S.C. § 300aa-15(e). Because the special master adopted the parties’ joint stipulation and awarded petitioner compensation, an award of reasonable attorneys’ fees and costs is mandated in this ease. And, of particular importance in this ease, the Federal Circuit has made it clear that “the determination of the amount of reasonable attorneys’ fees is within the special master’s discretion.”8 Saxton by & Through Saxton v. Sec’y of HHS, 3 F.3d 1517, 1520 (Fed.Cir.1993); accord Delta-X Corp. v. Baker Hughes Prod. Tools, Inc., 984 F.2d 410, 414 (Fed.Cir.1993) (“For good reasons, this court affords trial judges discretion to award ... attorney fees.”). Accordingly, the special master’s determination is “entitled to deference.” Saxton, 3 F.3d at 1521. “However, the special master must provide sufficient findings and analysis in her opinion for the court, upon review, to determine whether there was an abuse of discretion.” Wasson by Wasson v. Sec’y of HHS, 24 Cl. Ct. 482, 483 (1991) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).9 *463B. Petitioner’s Objections Pursuant to Vaccine Rule 24(a), petitioner enumerates three objections to the special master’s award of attorneys’ fees and costs: ONE: The Special Master’s Determination of the Prevailing Market Rates for Experienced Attorneys in Complex Litigation in the District of Columbia is Arbitrary, Capricious, an Abuse of Discretion, and Contrary to Law. TWO: Post-Hearing Briefing was a Critical Stage of the Case, and the Special Master Acted Arbitrarily and Capriciously and Abused Her Discretion in Reducing Mr. McHugh’s Hours for this Important Work by 45%. THREE: The Special Master’s Conclusion, in a Published Opinion, that Petitioner’s Attorney’s Mr. Gaynor and Mr. McHugh Engaged in “Intemperate and Ill-Considered Attacks” on Respondent is Arbitrary, Capricious, an Abuse of Discretion, and Contrary to Law, and is Likely to Chill Vigorous Advocacy by the Vaccine Act Bar. Mot. Review & Mem. Objections (“Mot.”) 1. The court addresses each objection in turn. C. Objection One: Petitioner’s Attorneys’ Hourly Rate 1. Legal Standards Special masters use a two-step approach to determine the amount of reasonable attorneys’ fees to award a petitioner under the Vaccine Act. Avera ex rel. Avera v. Sec’y of HHS, 515 F.3d 1343, 1347 (Fed.Cir.2008). First, the special master determines the lodestar by multiplying the number of hours the attorney reasonably expended on the litigation by a reasonable hourly rate. Id. at 1347-48 (citing Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Second, the special master may adjust the lodestar amount “based on other specific findings.” Id. at 1348. At issue here is the reasonable hourly rate awarded to petitioner for the services of Mr. McHugh and Mr. Gaynor. “[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 1348 (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541). The Federal Circuit has concluded that when calculating attorneys’ fees under the Vaccine Act, the hourly rate to be used should generally be the prevailing market rate of the forum, i.e., “the District of Columbia, where the Court of Federal Claims, which has exclusive jurisdiction over cases arising under the Vaccine Act, is located.” Id. at 1348-49. However, if “the bulk of the work is done outside of the District of Columbia in a legal market where the prevailing attorneys’ rates are substantially lower,” then the hourly rate to be used in the lodestar calculation is instead the lower out-of-forum rate. Id. at 1349 (adopting the exception described in Davis County Solid Waste Management & Energy Recovery Special Service District v. U.S. EPA, 169 F.3d 755 (D.C.Cir.1999) (per curiam)). Petitioner bears the burden “to produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with” the prevailing market rate. Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541; accord Hensley, 461 U.S. at 437, 103 S.Ct. 1933; Wasson, 24 Cl.Ct. at 484; Hines, 22 Cl.Ct. at 755. The special master is entitled to use her “prior experience in reviewing fee applications” to reduce the charged hourly rate to a reasonable rate. Saxton, 3 F.3d at 1521; accord Slimfold Mfg. Co. v. Kinkead Indus., Inc., 932 F.2d 1453, 1459 (Fed.Cir.1991) (noting that “a district court itself has experience in determining what are ... reasonable fees, and should rely on that experience and knowledge if the documentation is considered inadequate”). 2. Proceedings Before the Special Master In his initial fee application, which concerned the services provided by Mr. *464McHugh, petitioner requested that Mr. McHugh receive fees based on an hourly rate of $450, an amount that equaled his actual hourly billing rate. Rodriguez, 2009 WL 2568468, at *3. Petitioner noted that a $450 hourly rate was “well below the prevailing rates for senior litigators in New York City,” and that Mr. McHugh, who began handling Vaccine Act cases in 2000, was an experienced litigator with over forty years of experience. Id. Petitioner also contended that the $450 hourly rate was supported by the Federal Circuit’s decision in Avera. Id. Respondent countered that Avera did not support the requested hourly rate, that the hourly rate should be based on the rates charged in the years in which Mr. McHugh’s services were provided, and that, in any event, his hourly rate should mirror the $350 rate that he had received in an earlier Vaccine Act case — Kantor v. Secretary of HHS, No. 01-679V, 2007 WL 1032378 (Fed.Cl. Spec.Mstr. Mar. 21, 2007). Rodriguez, 2009 WL 2568468, at *4. Petitioner subsequently amended his fee request, contending that Mr. McHugh’s hourly rate should equal the rate charged by senior partners in major Washington, DC law firms, as reflected by the adjusted Laffey matrix.10 Id. He advanced three reasons *465why Mr. McHugh was entitled to these higher rates. First, he argued that the hourly rate received by Mr. McHugh in Kantor was “ ‘ridiculously low5.... ” Id. (quoting Mr. McHugh’s declaration). Second, he contended that because “respondent’s frequent challenges to attorneys’ fees and expert fees” discouraged attorneys from accepting Vaccine Act cases, Mr. McHugh should be rewarded for agreeing to represent him. Id. Third, he maintained that respondent’s refusal to concede that Giavanna suffered from a Table injury entitled Mr. McHugh to full compensation. Id. In response to petitioner’s contentions, respondent reiterated her objection to the $450 hourly rate and challenged the applicability of the adjusted Laf-fey matrix to determining the forum rate in Vaccine Act cases. Id. at *5. In response to the special master’s July 17, 2008 request for further evidence and argument, petitioner repeated his position that the adjusted Laffey matrix constituted the applicable forum rate, or at least provided “ ‘highly probative evidence of the forum rate in the District of Columbia.’ ” Id. (quoting petitioner’s response). Respondent again argued that the Laffey matrix “did not represent the appropriate foram rate” and that “petitioner had failed to produce sufficient evidence of what constituted the forum rate-” Id. at *6. Finally, in his supplemental attorneys’ fees application, petitioner asserted that the adjusted Laffey matrix constituted the applicable forum rate for Mr. Gaynor’s services. Id. Respondent again declared the adjusted Laf-fey matrix inapplicable to Vaccine Act cases. Id. The special master outlined the following framework for determining the proper hourly rate for petitioner’s attorneys: Based on Avera ..., it is clear that the analysis must begin with a determination of the forum rate. Once the forum rate is determined, then, if the bulk of the work was performed outside the forum, the analysis may shift to the market rate. Only if the “bulk of the work” exception to the forum rate applies is it then necessary to determine the rate of compensation in the legal marketplace where that work was performed, in order to determine if the Davis exception to the forum rule applies. Id. at *10. As a preliminary matter, the special master concluded that the neither the Laffey matrix nor the adjusted Laffey matrix constituted the forum rate for Vaccine Act cases. Id. at *11-12. She first noted that although petitioner “treated the applicability of the Laffey Matrix as a foregone conclusion,” the Federal Circuit expressly left open the issue in Avera. Id. at *11. She then explained that the Laffey matrix “is a court-created mechanism to streamline the issue of reimbursement of attorney fees in fee-shifting cases tried in the U.S. District Court for the District of Columbia,” and that “[tjhere are significant differences between the litigation in which the Laffey Matrix is applied and Vaccine Act litigation.” Id. The differences highlighted by the special master included the streamlined and simplified procedures in the no-fault Vaccine Act litigation and the fact that the Vaccine Act lacks a prevailing party requirement, making a denial of attorneys’ fees and costs unlikely so long as the petition was filed in good faith and on a reasonable basis. Id. She summarized: The Laffey Matrix does not represent the prevailing market rate as defined by the Supreme Court in Blum: that rate paid in the community for “similar services by lawyers of reasonably comparable skill, experience, and reputation.” The Laffey Matrix applies to complex litigation in which one must prevail in order to receive fees at all; discovery disputes abound; the rules of evidence apply; and, if litigated rather than settled, may be tried to a jury, rather than before a special master who hears only vaccine injury cases. None of these factors apply in Vaccine Act litigation. Id. (citation & footnotes omitted). The special master concluded that petitioner “failed to show that the services provided in civil cases tried in the U.S. District Court for the District of Columbia are similar to Vaccine Act litigation, or that his [attorneys’] skill *466and reputation are similar to those counsel who command the Laffey Matrix rates he requests.” Id. at *12. Having rejected the Laffey matrix as constituting the forum rate for Vaccine Act attorneys’ fees, the special master turned to determining what was, in fact, the forum rate. Id. at *13-15. She analyzed the following evidence in detail, addressing both the advantages and disadvantages of using the evidence to establish a forum rate: (1) information “concerning the agreed-upon rate of compensation” ($240 per hour for 2008) for Professor Meyers, the “one Vaccine Act attorney who provides the bulk of his services within the District of Columbia,” Id. at *13; (2) an order in Flannery v. Secretary of HHS directing respondent to show cause why petitioner’s counsel, an experienced tort attorney and senior partner at a Washington, DC law firm, should not receive fees based on a $300 hourly rate for work performed between 2001 and 2003, id. at *7 & n. 19, 13 (citing No. 99-963V, 2004 WL 2397590 (Fed.Cl. Spee.Mstr. Oct. 12, 2004)); (3) a cost of living index supplied by petitioner, id. at *13-14; (4) information “regarding a nationwide sampling of law firm billing rates, including Washington, DC area firms,” supplied by petitioner,11 id. at *13; (5) the Laffey matrix and the adjusted Laffey matrix, id. at *14; and (6) rates “charged and received by other attorneys handling Vaccine Act cases,” including those “negotiated for two small firms” in Boston, Massachusetts and Vienna, Virginia, Id. The special master found the Flannery order, combined with the cost of living index, to be the most probative of the forum rate for Vaccine Act cases. Id. at *13. She noted that although the order did not indicate the hourly rate ultimately awarded to the attorney in that ease, id. at *15, it “provided an indication of what rate an experienced Washington, DC tort litigation attorney requested for a Vaccine Act case and the view of the special master in that case that the rate was reasonable,” id. at *13. With the appropriate cost of living adjustment, the “2009 ‘forum rate’ for a similarly qualified attorney would not exceed $360.00 per hour.” Id. (footnote omitted). The special master then found that “[t]he information pertaining to Professor Meyers was less valuable” due to his representation of “Vaccine Act petitioners through a law school clinical practice” and associated lack of overhead expenses. Id. Nevertheless, not*467ed the special master, the hourly rate received by Professor Meyers was more than that received by other Vaccine Act attorneys and that, “[ijn general, attorneys who have roughly similar years of practice and experience in Vaccine Act litigation have been awarded hourly rates of between $250-350.00 ... for work performed in the last two years, although attorneys who practice in lower cost areas of the nation have been awarded lower rates.” Id. at *13 n. 43. With respect to the nationwide sampling of law firm billing rates supplied by petitioner, the special master concluded that it did “not provide sufficient detail concerning the nature of these law firms’ practice areas to offer much guidance on the forum rate in Vaccine Act eases,” such as whether the law firms “engage in similar litigation” or whether the “senior partners in these firms practice law of the same degree of complexity or with the same degree of skill as Mr. McHugh.” Id. at *13. Similarly, with respect to the Laffey matrix and adjusted Laf-fey matrix, the special master concluded that petitioner “failed to demonstrate that either matrix represents fees for work sufficiently comparable to Vaccine Act litigation so as to constitute sufficient evidence of a reasonable hourly rate in this case.” Id. at *14. Finally, the special master discussed the rates charged and received by other attorneys handling Vaccine Act cases. Id. She acknowledged first that “[bjeeause Avera ... changed the focus from the geographic rule previously used in the lodestar calculation to the forum rate, decisions issued prior to Av-era ... awarding specific hourly rates must be viewed with some caution, as they may be based on evidence of the geographic rate for the attorneys involved.” She also acknowledged that although “[tjhe rates negotiated between Vaccine Act petitioners’ counsel ... and the Department of Justice are informative concerning a ‘forum rate,’” and that “[tjhe rates negotiated for two small firms representing many vaccine claimants provide some measure of what the market rate may be,” the negotiated rates “are certainly not dispositive.” Id. (footnote omitted); see also id. (explaining that the similar negotiated rates for the two small firms from Vienna, Virginia, and Boston, Massachusetts that handle Vaccine Act litigation provided “some measure” of “what a willing buyer would pay a willing seller” and “clearly [didj not represent a geographic or ‘hometown’ rate”). Nevertheless, she found: Although Mr. McHugh has somewhat less experience in Vaccine Act litigation than the lead counsel at each of these two firms, each of those counsel and Mr. McHugh have been practicing law for similar (and lengthy) periods of time. Thus, applying the Blum requirement that fees should be based on those that are paid to “lawyers of reasonably comparable skill, experience, and reputation,” I have considered these negotiated rates to have some relevance to my determination of the forum rate for an attorney of Mr. McHugh’s skill and experience. Id. at *15 (citation omitted). Ultimately, the special master reached the following conclusion: Based on all the evidence available to me, and considering my own experience with attorney fees in the Vaccine Program, I conclude that the “forum rate” for an attorney with more than 20 years of experience, and one with considerable specialized expertise in Vaccine Act cases or litigation of similar or greater complexity, is in the range of $275-360.00 per hour, with work performed in earlier years at the lower end of this range and work performed more recently at the higher end of this range. Id. Moreover, because the forum rate was not significantly more than the billing rates typically charged by Mi’. McHugh and Mr. Gaynor (indeed, they were less than the attorneys’ billing rates), the special master found the exception to the forum rule articulated by the Federal Circuit in Avera inapplicable. Id. at *15-16; cf. id. at *16-19 (concluding that “[ijf there is a ‘higher cost’ exception to Avera ..., this case does not present the prerequisites for applying it,” noting that neither Mr. McHugh nor Mr. Gaynor possessed special expertise or that local attorneys were unwilling to take this case). *468Accordingly, as noted above, the special master awarded petitioner the following hourly rates for Mr. McHugh’s services: $310 for 2006, $320 for 2007, $330 for 2008, and $335 for 2009. Id. at *23. She then awarded petitioner the following hourly rates for Mr. Gaynor’s services: $270 for 2008 and $275 for 2009. Id. at *24. 3. Analysis of Petitioner’s Arguments Petitioner generally contends that the special master erred in setting the prevailing market rate for Vaccine Act attorneys. As an initial matter, and as petitioner concedes, the special master rightly concluded that Avera generally requires attorneys’ fees under the Vaccine Act to be awarded using the forum rate, i.e., the rate prevailing in the District of Columbia “ ‘for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ” See id. at *2-4 (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541). Petitioner bears the burden of establishing that his “requested rates are in line with” the prevailing market rate. Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541. Thus, petitioner submitted the following evidence of the forum rate: a nationwide survey of law firm billing rates that included rates for Washington, DC firms; the Laffey matrix; and the adjusted Laffey matrix. The special master found this evidence insufficient to demonstrate the prevailing hourly rate for attorneys who provide services similar to those provided by Vaccine Act attorneys. Accordingly, she also looked to other evidence to determine the relevant forum rate. Petitioner asserts that the special master’s determination of the forum rate was in error for several reasons. The court discusses each of petitioner’s arguments below. a. The Special Master’s Rejection of the Laffey Matrix Was Not Error Petitioner’s primary objection to the special master’s decision is to her rejection of the Laffey matrix and the adjusted Laffey matrix as prima facie evidence of the forum rate for Vaccine Act litigation. He first argues that the matrices have been accepted as sufficient evidence of the prevailing market rate for federal litigation in the District of Columbia. He claims next that the special master improperly distinguished the litigation to which the matrices have been applied from Vaccine Act litigation. Third, petitioner contends that the special master incorrectly distinguished the Vaccine Act from other fee-shifting statutes. Finally, he argues that there are strong policy rationales for the use of the matrices. The court is not persuaded by any of petitioner’s contentions. i. Courts’ Acceptance of the Laffey Matrix It is unquestioned that the D.C. Circuit has approved of the use of the Laffey matrix and the adjusted Laffey matrix as the starting point for determining the forum rate. See Covington, 57 F.3d at 1108-09. Moreover, both matrices have been used by the D.C. District Court. See DL, 256 F.R.D. at 242-43; Salazar, 123 F.Supp.2d at 13-15; Blackman, 59 F.Supp.2d at 43. However, petitioner makes no attempt to explain why acceptance by courts in another circuit necessitates the special master’s acceptance of the matrices in this ease. Indeed, these decisions are not binding on the Court of Federal Claims. See Admiral Fin. Corp. v. United States, 378 F.3d 1336, 1340 (Fed.Cir.2004) (indicating that decisions of other federal appellate courts, while “accorded great weight,” are not binding on the Federal Circuit); AINS, Inc. v. United States, 365 F.3d 1333, 1336 n. 1 (Fed.Cir.2004) (noting that the holdings of federal district courts “are instructive but not precedential”); Bankers Trust N.Y. Corp. v. United States, 225 F.3d 1368, 1371 (Fed.Cir.2000) (asserting that the decisions of federal appellate courts other than the Federal Circuit are not binding on the Court of Federal Claims). And, there is no binding precedent requiring the use of the Laffey matrix in Vaccine Act eases, cf Avera, 515 F.3d at 1350 (“We thus have no occasion to determine whether the so-called Laffey matrix should play any role in the determination of fees under the Vaccine Act .... ”), much less in any other type of ease that arises within the Federal Circuit.12 *469Moreover, as petitioner concedes, neither the D.C. Circuit nor the D.C. District Court mandates the use of either matrix. The controlling standard in the D.C. Circuit for determining a reasonable hourly rate is “that an attorney’s usual billing rate is presumptively the reasonable rate, provided that this rate is ‘in line with those prevailing in the community for similar’ services by lawyers of reasonably comparable skill, experience, and reputation.’ ” Kattan, by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.Cir.1993) (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541). In light of this standard, some judges on the D.C. District Court have specifically rejected the use of the matrices. For example, in Agwpito, the D.C. District Court declined to award attorneys’ fees based on the Lajfey matrix for the attorneys’ participation in straightforward administrative proceedings under the IDEIA. 525 F.Supp.2d at 152-55; accord A.C., by Clark v. District of Columbia, No. 06-00439(HHK), 2009 WL 4840939, at *5 (D.D.C. Dec. 15, 2009) (holding that the Lajfey matrix “is inapplicable because it is intended to apply to complex federal litigation and almost all of the attorney’s fees in question are the result of counsel’s preparation for attendance at routine administrative hearings”). The court distinguished the administrative proceedings from the more complex litigation to which the Lajfey matrix applied: There are nine administrative proceedings for which fees are being sought. Only four involved a presentation to a hearing officer, as the parties reached settlement agreements on the others. Preparation for a due process hearing requires (1) the filing of a hearing request form; (2) participation in a resolution/mediation session prior to the hearing; (3) submission of all documents and witnesses to be introduced at the hearing; and (4) representation of the student and parent at the hearing itself, which involves putting on witnesses, cross-examining witnesses, and introducing evidence. Legal argument may also be made. While an IDEIA case may be more complicated, ... these particular matters were not. There were no pre-hearing interrogatories or discovery, no production of documents or depositions, no psychiatrists or psychologists testifying about learning disabilities, no briefings of intricate statutory or constitutional issues, no pre-trial briefings, no lengthy hearings, no protracted arguments, and few, if any, motions filed. Agapito, 525 F.Supp.2d at 152 (citations omitted). Similarly, in Muldrow, the D.C. District Court reduced the plaintiffs fee request — based on the Lajfey matrix — by twenty-five percent because the case was a “relatively straightforward negligence suit,” explaining: [T]he case involved a single plaintiff and a single defendant; there were few pre-trial motions; the case was not vigorously litigated by defendant; and plaintiffs attorneys had already thoroughly investigated defendant in a prior case that raised similar issues. These factors all distinguish this lawsuit from the type of case in which Lajfey fees are typically awarded. Muldrow, 397 F.Supp.2d at 4 (footnote omitted). Thus, the mere acceptance of the Laf-fey matrix by some judges in certain cases in the D.C. District Court does not mandate its use by this court or the special master. ii. Distinguishing Vaccine Act Litigation From Complex Federal Litigation The decisions of the D.C. District Court in Agapito and Muldroiv are also instructive in the court’s consideration of petitioner’s second contention — that there is no relevant distinction between Vaccine Act litigation and the litigation to which the Lajfey matrix and adjusted Lajfey matrix have been applied. Those fee decisions reflect that certain types of federal litigation are not sufficiently complex to warrant an award of attorneys’ fees based on either matrix. Here, petitioner argues that, contrary to the special master’s finding, Vaccine Act litigation is sufficiently complex. *470As noted above, in Laffey, the D.C. District Court approved a schedule of “the prevailing rates in the community for lawyers of comparable skill, expertise and reputation in complex federal litigation” for use in a Title VII employment discrimination ease. 572 F.Supp. at 371-75. The court remarked on the complexity of the lawsuit, noting that it was “an extraordinary undertaking in many respects, consuming thirteen years and thousands of personnel hours and raising numerous issues under both [federal employment discrimination] statutes.” Id. at 359. In particular: The ease was contemplated as a class action on behalf of over 3,300 flight attendants; the alleged statutory violations touched virtually every aspect of Defendant’s employment practices and raised a multitude of legal and factual issues; and the outcome of these issues was far from preordained. No prior government or private proceeding had suggested Defendant’s liability or had even developed the facts of the case; Plaintiffs’ counsel had to conduct their own extensive investigation and discovery, and they simply could not know at the outset of their representation how the critical facts would develop. Moreover, the case was brought at an early stage in the development of the law under Title VII and the Equal Pay Act. There were few significant legal precedents interpreting either of the statutes and none from the United States Supreme Court. Thus, Plaintiffs’ counsel could not know or reliably predict what the controlling standards would be. Finally, Plaintiffs knew they were facing a large, well-financed corporate defendant with a policy and history of tenaciously defending cases brought against it. This fact, combined with the unsettled state of the law, presaged a protracted battle in both the trial and appellate courts. And Plaintiffs’ counsel knew at the outset that the battle would be waged on Defendant’s behalf by extremely capable counsel. Thus, Plaintiffs’ counsel knew from the beginning that they would be met with a maximum legal effort both in terms of the quality of defense counsel and the vigor with which Defendant would litigate the action, and that nothing less than the same effort would be required of them. Id. at 378-79 (citation & footnotes omitted). To demonstrate that Vaccine Act litigation is similarly complex, petitioner quotes language from three Vaccine Act decisions. Petitioner first represents — incorrectly—that the Claims Court expressed the following view of the complexity of Vaccine Act litigation: Although Congress chose to provide petitioners with an alternative to the traditional civil forum, relax standards of causation, and ease rigid procedural rules, issues under the Act are nonetheless complex. Vaccine litigation requires counsel’s extensive knowledge of biology, microbiology, immunology, neurology, pediatrics and infant and child development, and a variety of complex damage issues. It does not follow that simply because the legal issues have changed, and perhaps been simplified, that significant skill is not required to competently represent a petitioner. The substantive issues of vaccine litigation remain complex, both factually and legally-it is merely the procedural framework which has simplified. Monteverdi v. Sec’y of HHS, 19 Cl.Ct. 409, 434 (1990) (Spec. Mstr. Report & Recommendation) (footnotes omitted). However, it was the special master, not the Claims Court, who crafted the quoted language.13 This court’s noting petitioner’s misattribution is not mere nit-picking. The quotation is found in a portion of the special master’s Report and Recommendation that was not adopted *471by the Claims Court.14 See id. at 413 (“[W]e incorporate herein by reference and adopt the attached Report of the Special Master only with respect to the factual findings and conclusion of law on the merits regarding entitlement to the death benefit.”). Indeed, the Claims Court specifically rejected “the Special Master’s findings regarding reasonable hourly fee rates,” which included the finding concerning the complexity of Vaccine Act litigation. Id. at 420. Significantly, the Claims Court made express findings to the contrary: [N]o creditable showing was made through any of the affiants — establishing unusual facts showing that extraordinary talents were required and that such services were actually provided in litigating this ease which would warrant the high fees claimed. Rather, the irrefutable evidence requires a finding to the contrary. This conclusion is patently clear for the reason that — (i) to establish the requisite liability under the Program a redueed/minimum standard of proof is required; (ii) under the Program there is no necessity to prove negligence in the traditional manner in tort cases; (iii) proof problems were minuscule if not nonexistent in this case; (iv) the case is neither complex nor vexing in fact or in law in that the hearing transcript consisted of only 96 pages; thus, the time required for the hearing was probably less than three hours; (v) there was no briefing of the issues; (vi) the trial proceedings were non-adversarial in that the respondent’s counsel withdrew and did not cross-examine any witnesses or adduce any evidence, except the autopsy report; and (vii) upon the perfunctory establishment of certain basic facts, there is a rebuttable presumption of causation and resulting liability under the Program. Id. at 419-20 (footnote omitted). Therefore, the court finds the quotation supplied by petitioner to be unavailing. Because the quoted language was rejected by the reviewing court, it lacks any authoritative or probative value. Thus, petitioner cannot rely on that language and the court strongly cautions against the future use of the quotation. The second quotation highlighted by petitioner and offered in support of his position comes from an attorneys’ fees decision issued by the Chief Special Master: While the rules of procedure are relaxed, complex legal and medical issues are encountered with relative frequency and many claims require as much preparation as traditional tort actions. Clearly, the straightforward nature of the Act, as originally contemplated by Congress, has proven a falsity in many instances. Not only do most claims take years to resolve, but the amount of damages awarded may reach in the millions over a vaccine’s lifetime. These scenarios are quite comparable with the traditional tort system. In addition, because of the 1995 administrative changes to the Vaccine Injury Table, most petitioners are forced to pursue actual causation theories. Consequently, when the medical records fail to sufficiently support petitioners’ contentions, as they often do, petitioners are obligated to present testimony from qualified medical experts who may have spent hours reviewing the records and preparing one or several expert *472reports. Furthermore, it is this court’s experience that one expert is often inadequate to support petitioners’ claims; it is not unusual for one to four experts from various disciplines within the medical community to testify on petitioners’ behalf. In addition, multiple hearings in any given case are not infrequent. And, of course, the court relies heavily on the experts’ testimony to comprehend what are often truly difficult medical matters in causation-in-fact cases. The effective presentation of these cases requires knowledgeable, able, and experienced counsel. Such counsel command high hourly rates in the open market; the same market the lodestar is premised upon. Therefore, the argument that Program litigation is uncomplicated and requires less expertise or preparation than traditional tort litigation is no longer valid and will not be considered a factor in determining hourly rates. Erickson, 1999 WL 1268149, at *4. The Chief Special Master accurately described some of the complexities that may arise in Vaccine Act litigation. However, he did not address whether Vaccine Act litigation is as complex as the litigation to which the Laffey matrix has been applied. Indeed, in a subsequent decision, which petitioner did not distinguish, much less cite, the Chief Special Master found that the petitioner had not produced any “evidence that the hourly rates in the Laffey Matrix represent [ ] the rates for comparable attorneys handling comparable cases to those handled in the Vaccine Program.” Ray, by Ray v. Sec’y of HHS, No. 04-184V, 2006 WL 1006587, at *5 (Fed.Cl.Spec.Mstr. Mar. 30, 2006); accord English ex rel. English v. Sec’y of HHS, No. 01-61V, 2006 WL 3419805, at *7 (Fed.Cl.Spec.Mstr. Nov. 9, 2006) (noting that despite his suggestion in Ray that a petitioner would need to submit evidence supporting the application of the Laffey matrix in Vaccine Act litigation, the petitioners had not submitted any “new evidence that establishes that the Laffey Matrix has applicability beyond those fee-shifting” statutes with prevailing party requirements to which it had already been applied). The final quotation supplied by petitioner is from another decision issued by the special master assigned to this case: “Certain provisions of the Vaccine Act and its legislative history strongly indicate that Congress contemplated that the special masters would develop expertise in the complex medical and scientific issues involved in actual causation claims and would then apply this expertise to the resolution of other cases.” Snyder, by & Through Snyder v. Sec’y of HHS, No. 01-162V, 2009 WL 332044, at *2 (Fed.Cl.Spec.Mstr. Feb. 12, 2009), aff'd, 88 Fed.Cl. 706 (2009). In Snyder, the special master merely recited the congressional purpose behind designating a group of specialized decision-makers to preside over Vaccine Act eases, and did not make any broader statements about whether Vaccine Act litigation, as a whole, was complex. However, she did make the broader statement in this case, concluding that Vaccine Act litigation is not sufficiently complex to justify using the Laf-fey matrix or the adjusted Laffey matrix as prima facie evidence of the forum rate. Accordingly, the special master’s finding in this ease seriously undercuts petitioner’s reliance on the special master’s statement in Snyder. By offering quotations from Eñckson and Snyder regarding the complexity of Vaccine Act cases without acknowledging the later decisions by those same special masters that declined to find, either expressly or impliedly, that Vaccine Act litigation is of sufficient complexity to warrant the application of the Laffey matrix as prima facie evidence of the forum rate, petitioner misrepresents the import of the quotations and seriously detracts from his argument. Indeed, while the language quoted by petitioner describes certain aspects of Vaccine Act litigation as complex, none of the commentary addresses whether Vaccine Act litigation is of sufficient complexity to warrant comparison to the complex federal litigation described in Laffey and other cases within the D.C. Circuit. Therefore, the special master’s determination in this case that Vaccine Act litigation is not comparably complex does not contradict the views expressed in EHckson and Snyder.15 *473Moreover, the court cannot say, as a matter of law, that all Vaccine Act litigation qualifies as complex federal litigation such that the Laffey matrix should constitute pri-ma facie evidence of the forum rate. The elements contributing to the complexity of the Laffey litigation included: (1) its posture as a class action on behalf of over 3,300 plaintiffs; (2) the implication of almost all of the defendant’s employment practices; (3) the large number of factual and legal issues; (4) the need for the plaintiffs to conduct an extensive investigation and discovery; (5) the lack of significant binding precedent defining the controlling legal standards; (6) the presence of a well-financed corporate defendant; and (7) the protracted length of the litigation. Laffey, 572 F.Supp. at 359, 378-79. Such taxing demands are almost never present in Vaccine Act litigation. For example, there is no provision for class actions in either the Vaccine Act or the Vaccine Rules. Discovery is not generally permitted. See 42 U.S.C. § 300aa-12(d)(2)(E); Vaccine Rule 7. The controlling legal standards have been well fleshed out. See, e.g., Althen v. Sec’y of HHS, 418 F.3d 1274, 1278 (Fed.Cir.2005) (summarizing Federal Circuit precedent dating from 1992 to describe a three-part test for causation-in-fact). And, the length of the litigation is statutorily restricted. See, e.g., 42 U.S.C. § 300aa-12(d)(3)(A)(ii) (requiring a special master to issue a decision within 240 days, exclusive of any period in which proceedings are suspended), -12(d)(3)(C) (allowing suspensions of proceedings of up to 150 days), -12(e)(2) (requiring the Court of Federal Claims to rule on a motion for review within 120 days of receiving respondent’s response and permitting no more than ninety days for remand to the special master). Indeed, upon the expiration of the statutory deadline, petitioners can choose to withdraw their petition under the Vaccine Act and bring a civil action in the appropriate court. See id. §§ 300aa-12(g), -16(c), -21(b). Thus, any decision to continue Vaccine Act litigation beyond the statutory time limitation is entirely voluntary. Altogether, these differences demonstrate that litigation under the Vaccine Act is more streamlined and straightforward than the litigation that occurs under other statutes with fee-shifting provisions, as the special master observed.16’ See Rodriguez, 2009 WL 2568468, at *11 (citing Avera, 515 F.3d at 1353 (Rader, J., concurring)). Equating Vaccine Act litigation to traditional tort litigation is similarly unavailing. The court does not dispute the proposition that Vaccine Act litigation can be “quite comparable with the traditional tort system.... ” Erickson, 1999 WL 1268149, at *4. However, that does not force the conclusion that it is the type of complex federal litigation to which the Laffey matrix applies. Not all tort litigation is sufficiently complex. See Muldrow, 397 F.Supp.2d at 4 (declining to apply the Laffey matrix to a “relatively straightforward negligence suit”). Furthermore, while the court recognizes that the D.C. District Court has used the Laffey matrix in awarding attorneys’ fees under a wide range of fee-shifting statutes, see Miller v. Holzmann, 575 F.Supp.2d 2, 14 (D.D.C.2008) (listing cases), the decisions memorializing the awards do not compel this court to apply the Laffey matrix when awarding attorneys’ fees under the Vaccine Act. For one, the Court of Federal Claims is not bound by the D.C. District Court’s decisions memorializing its awards. AINS, Inc., 365 F.3d at 1336 n. 1. And, none of the D.C. District Court’s decisions bears the imprimatur of the D.C. Circuit, which would lend them more persuasive value. Indeed, although the D.C. Circuit has endorsed the use of the Laffey matrix in determining a reasonable award of attorneys’ fees, Covington, 57 F.3d at 1109, it “has never held that Laffey rates are the only rates that a court may consider reasonable,” Miller, 575 F.Supp.2d at 16. Accordingly, the court finds no error in the special master’s conclusion that Vac*474cine Act litigation does not constitute complex federal litigation as contemplated in Laf-fey- iii. Distinguishing the Vaccine Act From Other Fee-Shifting Statutes Similarly, the special master’s finding that the Vaccine Act’s lack of a prevailing party requirement further distinguished it from other fee-shifting statutes is not error. In concluding that the Vaccine Act differs from the fee-shifting statutes under which the Laf-fey matrix has been used in calculating attorneys’ fees, the special master remarked: In the fee-shifting cases in which the Laffey Matrix is applied, a party must prevail in the litigation in order to receive fees, a factor that suggests not only that the underlying claim was meritorious, but also that the ease was competently tried. Under the Vaccine Act, nearly all litigants receive attorney fees and costs because the Act provides that fees may be awarded to unsuccessful litigants.... Thus, the risk of attorneys receiving no compensation at all is significantly reduced, a factor that undoubtedly influences whether an attorney will take a Vaccine Act case in which the likelihood of prevailing is not high. Rodriguez, 2009 WL 2568468, at * 10-11. Petitioner interprets the special master’s language as a conclusion that “the Laffey Matrix has no application to Vaccine Act cases because Laffey rates are higher due to contingent risk_” Mot. 20. Yet, nowhere does the special master comment that the risk of losing a case is reflected in the Laffey matrix’s hourly rates. Indeed, such a finding would likely be in error. See Masias v. Sec’y of HHS, No. 99-697V, 2009 WL 1838979, at *19 (Fed. Cl. Spec. Mstr. June 12, 2009) (“Because the original Laffey matrix rates seem to correspond to, if not actually derive from, the rates paid to defense counsel, it appears that the original Laffey matrix rates did not have a contingency or risk factor built into them. Successive updates of the Laffey matrix have not injected a contingency factor into the matrix.”), aff'd, slip op. at 2 (Fed.Cl. Dec. 10, 2009) (unpublished decision). Moreover, if the Laffey matrix did account for risk of loss, its validity would be called into question by the very same case law cited by petitioner in support of his argument. See City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (“[W]e hold that enhancement for contingency is not permitted under the fee-shifting statutes at issue.”); Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 727, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (plurality opinion) (“[W]e conclude that multipliers or other enhancement of a reasonable lodestar fee to compensate for assuming the risk of loss is impermissible under the usual fee-shifting statutes.”); Welch v. Metro. Life Ins. Co., 480 F.3d 942, 947 (9th Cir.2007) (“The district court correctly observed that contingency cannot be used to justify a fee enhancement or an inflated hourly rate.” (citations omitted)); Davis v. City & County of San Francisco, 976 F.2d 1536, 1548-49 (9th Cir.1992) (“While the Dague Court did not speak directly to this point, we believe that its rejection of contingency as a basis for multiplying a lodestar fee similarly dictates that contingency not be a factor in the setting of billing rates.”), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993). Notably, the special master’s acknowledgment of the Vaccine Act’s lack of a prevailing party requirement was of a limited nature; she only cited the lack of such a requirement as one reason why the Laffey matrix did not constitute prima facie evidence of the forum rate under the Vaccine Act. Any broader interpretation of her comments e.g., that the special master reduced her award of attorneys’ fees to petitioner based on the Vaccine Act’s lack of a prevailing party requirement-would be in error. Thus, the court cannot conclude that the special master’s brief discussion of the Vaccine Act’s lack of a prevailing party requirement is contrary to law. iv. Policy Considerations Finally, petitioner advances three general policy arguments in support of the adoption of the Laffey matrix as prima facie evidence of the forum rate. First, he contends that the matrix has been used in the forum district for more than twenty-five years, making it a “time-tested tool for courts.” Mot. 26. Of course, the only court in the forum that *475has used the Laffey matrix on a regular basis is the D.C. District Court.17 Thus, while it may be a well-understood and oft-used tool in the D.C. District Court, it does not enjoy the same history in this court. Second, petitioner makes the related contention that litigation of attorneys’ fees would be more efficient if the Laffey matrix was used to calculate the forum rate in Vaccine Act cases, avoiding the “second major litigation” decried by the United States Supreme Court (“Supreme Court”) in Hensley, 461 U.S. at 437, 103 S.Ct. 1933. Efficiency is certainly a laudable goal. However, if the Laffey matrix does not accurately represent the forum rate applicable in Vaccine Act cases, the efficiency engendered by its use is irrelevant. Finally, petitioner asserts that the use of the Laffey matrix would further one of the underlying purposes of the Vaccine Act: the need for petitioners to have access to a competent bar to advocate on their behalf. See Avera, 515 F.3d at 1352 (“[Ojne of the underlying purposes of the Vaccine Act was to ensure that vaccine injury claimants have readily available a competent bar to prosecute their claims.”); Saunders, 25 F.3d at 1035 (“A secondary purpose of the Act is to ensure that vaccine-injury claimants will have readily available a competent bar to prosecute their claims under the Act.”); see also Augustine v. Dep’t of Veterans Affairs, 429 F.3d 1334, 1343 (Fed.Cir.2005) (“The Supreme Court has, on numerous occasions, explained that the ‘fundamental aim of [fee-shifting] statutes is to make it possible for those who cannot pay a lawyer for his time and effort to obtain competent counsel, this by providing lawyers with reasonable fees to be paid by the losing defendants.’ ” (quoting Del. Valley Citizens’ Council for Clean Air, 483 U.S. at 725, 107 S.Ct. 3078 (plurality opinion))). As the special master noted, however, petitioner offered no persuasive evidence, and she was not aware of any evidence, that potential claimants were having-any difficulty securing competent counsel with the hourly rates currently awarded under the Vaccine Act: The record is likewise sparse concerning the unavailability of other counsel to take this case.... The evidence that Mrs. Rodriguez had difficulty in locating an attorney willing to take her son’s case fails to establish that no attorney practicing in the Vaccine Program, at the rates customarily paid by this Program, would take the case. There are many reasons a law firm may decline a case, and the facts of this one likely contributed to the reluctance of the firms contacted to do so.... The fact that some attorneys or firms have ceased to handle Vaccine Act eases does not, standing alone, constitute sufficient evidence that the hourly rates paid to attorneys in Vaccine Act eases are inadequate. Cases under the Vaccine Act continue to be filed, both by attorneys and by pro se litigants. The number of pro se litigants remains small. Some litigants who initially file pro se petitions subsequently secure counsel. Some litigants who are represented by counsel have a parting of the ways with them attorneys and subsequently proceed pro se. Petitioner’s anecdotal evidence of attorneys leaving the Vaccine Program may cox-rectly reflect that specific counsel have elected to practice elsewhere. However, reasoning from the specific to the general often results in a fallacious argument. Petitioner has provided no evidence of a general exodus of attorneys from the Vaccine Program. Data available from the Clerk of Court is to the contrary. Of the attorneys who had three or more vaccine cases filed in 1997 or 1998, all but one of those attorneys also filed eases in 2007 or 2008. In addition, eight more attorneys joined the list of those filing three or more eases in 2007 or 2008. *476Rodriguez, 2009 WL 2568468, at *17; see also id. at *12 (“If a reasonable fee is that fee necessary to attract and retain competent counsel, then the fees that have been awarded in Vaccine Act cases in recent years have adequately accomplished that purpose.”), 18 (“The ‘eonclusory impressions of interested lawyers’ does not demonstrate that Vaccine Act litigants are unable to retain qualified counsel, much less that the rates of pay authorized by this court are the cause of any such inability to find representation.” (quoting U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 726, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990))). Moreover, Congress’s decision to permit an award of attorneys’ fees to nonpre-vailing petitioners is another inducement to the private bar to represent petitioners in Vaccine Act cases. See Saunders, 25 F.3d at 1035-36 (noting that one of the purposes of the Vaccine Act, ensuring “that vaccine-injury claimants will have readily available a competent bar to prosecute their claims,” is “effectuated by permitting the award of attorneys’ fees and costs both to prevailing and non-prevailing claimants”); H.R.Rep. No. 99-908, at 22 (1986), U.S.Code Cong. & Admin.News 1986, pp. 6344, 6363 (“[T]he Committee does not intend that the limitation of fees to those included in the award act to limit petitioners’ ability to obtain qualified assistance and intends that the court make adequate provision for attorneys’ time and that the court exercise its discretion to award fees in non-prevailing, good-faith claims.”). Thus, there is adequate support for the conclusion that awax-ds of attorneys’ fees calculated without the benefit of the Laffey matrix have been sufficient to attract competent counsel to Vaccine Act litigation. Altogether, none of the policy considerations advanced by petitioner convinces the court to overturn the special master’s rejection of the Laffey matrix as prima facie evidence of the forum rate. v. Conclusion In sum, the court concludes that petitioner’s objections to the special master’s rejection of the Laffey matrix and the adjusted Laffey matrix as prima facie evidence of the forum rate for Vaccine Act cases lack merit. The special master’s decision in this respect was not arbitrary, capricious, an abuse of discretion, or contrary to law. b. The Special Master’s Consideration of Evidence Predating Avera Was Not Error Petitioner next contends that the special master ignored the evidence he offered and instead relied almost entirely upon evidence that concerned hourly rates awarded prior to the Federal Circuit’s decision in Avera. Implicit in petitioner’s argument are two contentions; first, that the special master improperly weighed the evidence before her regarding the forum rate and second, that the special master should not have considered any evidence concerning hourly rates awarded before the Federal Circuit issued its decision in Avera. Petitioner’s first contention founders under the weight of the Federal Circuit’s unmistakable declaration that special mastei’s have considerable discretion in determining an award of reasonable attorneys fees. Saxton, 3 F.3d at 1520; accord Delta-X Corp., 984 F.2d at 414; see also Cybor Corp., 138 F.3d at 1460 (defining an abuse of discretion). The special master was entitled to weigh the evidence concerning the forum rate as she saw fit. See Lampe, 219 F.3d at 1360 (“The arbitrary and capricious standard of review is difficult for an appellant to satisfy ... with respect to an issue that turns on the weighing of evidence by the trier of fact.”); Whitecotton, 81 F.3d at 1108 (“Congress desired the special masters to have very wide discretion with respect to ... the weight to be assigned that evidence.”); Hines, 940 F.2d at 1527 (noting that “arguments as to the weighing of evidence ... do not demonstrate reversible error”). With respect to the second contention, petitioner does not specify how the special master’s use of this “pre-Avera” evidence to ascertain the forum rate was in error. Evidence of hourly rates is not rendered useless merely because the evidence predates the Federal Circuit’s decision in Avera. Indeed, some of the evidence considered by the special master — the hourly rate suggested in Flannery and the hourly rate negotiated on behalf of Professor Meyers — is directly relevant to the forum rate as it concerns Vaccine Act attorneys who practice in the District of *477Columbia. Further, the special master expressly noted that she approached the use of other awarded hourly rates with caution due to the fact that they were awarded before the Federal Circuit endorsed the forum rule. Finally, the special master explained that the similar rates negotiated by the two small firms from Vienna, Virginia, and Boston, Massachusetts that handle Vaccine Act litigation were evidence of what a willing buyer might pay a willing provider of Vaccine Act litigation services and thus did not constitute the geographic rates rejected by the Federal Circuit in Avera. Accordingly, the court finds no error in the special master’s consideration of “pr &-Avera ” attorneys’ fees awards. The special master provided sufficient findings and analysis to demonstrate that she “considered the relevant evidence of record, dr[ew] plausible inferences and articulated a rational basis for the decision.... ” Hines, 940 F.2d at 1528. c. The Special Master’s Purported Limiting of the Relevant Forum Was Not Error Next, petitioner contends that the special master’s definition of the relevant forum was too narrow. Specifically, he avers that the special master improperly limited the market for “similar services,” Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541, solely to prior Vaccine Act litigation. Petitioner asserts that this so-called “micro-market” approach has been soundly rejected by several of the United States Courts of Appeals. There are two difficulties with petitioner’s argument. First, in reading the cases he cited in support of his contention, it is apparent that not all of the United States Courts of Appeals have rejected the “micro-market” approach. Compare Christensen v. Stevedoring Servs. of Am., 557 F.3d 1049, 1054-55 (9th Cir.2009) (finding the petitioners’ contention that the Benefits Review Board “should not be allowed to define ‘prevailing market rate’ in such a way as to define the ‘market’ only in terms of what has been awarded” in prior cases under the same fee shifting statute a “legitimate point” but also concluding that it would be reasonable for the Benefits Review Board to look at prior awards if a fee applicant failed to “produce evidence of the relevant market and the rate charged”), and Student Pub. Interest Research Group of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1445-46 (3d Cir.1988) (rejecting the “micro-market” approach), with Newport News Shipbuilding & Dry Dock Co. v. Brown, 376 F.3d 245, 251 (4th Cir.2004) (“Evidence of fee awards in comparable cases is generally sufficient to establish the prevailing market rates in the relevant community.” (internal quotation marks omitted)), and Student Pub. Interest Research Group of N.J., Inc., 842 F.2d at 1445-46 (citing eases in which the United States Courts of Appeals for the Seventh and Eleventh Circuits used a “micro-market” approach that defined the “market for public interest legal work” as “what public interest lawyers actually receive,” “rather than looking to the rates of attorneys of comparable skill and experience”). The lack of consensus among the circuit courts leads this court to conclude that it may not be prudent to reject a “micro-market” approach out of hand. Moreover, the one federal appellate court that issues decisions binding on this court, the Federal Circuit, has not staked out a position on this issue. Second, and more problematic, is that the special master’s purported limiting of the market for services similar to Vaccine Act litigation is a direct result of petitioner’s failure to provide evidence sufficient to demonstrate the prevailing market rate. Petitioner submitted, as previously noted, the following evidence of the forum rate: the Laffey matrix; the adjusted Laffey matrix; and a nationwide survey of law firm billing rates that included rates for Washington, DC firms. As the court held above, the special master’s rejection of the Laffey matrix and the adjusted Laffey matrix as prima facie evidence of the forum rate for Vaccine Act cases was not error. Nor was it error for the special master to conclude that the matrices were insufficient even when considered as “some evidence” of the forum rate. See Whitecotton, 81 F.3d at 1108 (“Congress desired the special masters to have very wide discretion with respect to the evidence they would consider_”). Furthermore, the special master did not err in concluding that *478nationwide survey of law firm billing rates lacked the details necessary to determine whether the services provided by the included law firms could be compared favorably with Vaccine Act litigation; the survey is devoid of any information about the types of litigation handled by the law firms. See id. Thus, in the absence of sufficient evidence from petitioner, the special master was entitled to turn to the other evidence before her, which mainly consisted of Vaccine Aet-relat-ed information, as well as her prior experience handling Vaccine Act litigation, to determine the applicable prevailing market rate. The special master’s decision in this respect was not arbitrary, capricious, an abuse of discretion, or contrary to law. d. The Special Master’s Consideration of Evidence Was Not Error Petitioner next argues that the evidence considered by special master — i.e., Professor Meyer’s negotiated hourly rates, the Flannery order, the hourly rates charged and received by other attorneys, the negotiated hourly rates for two small law firms in Boston, Massachusetts and Vienna, Virginia, and her experience reviewing applications for attorneys’ fees under the Vaccine Act — was legally insufficient to support her determination of the forum rate for Vaccine Act litigation. Petitioner’s argument is unconvincing for two reasons. First, as noted above, the special master toned to this evidence after rejecting the limited evidence submitted by petitioner as inadequate to establish the applicable forum rate. In other words, the special master would not have needed to examine this evidence had petitioner met his burden of proof. Thus, petitioner has little basis to complain about what evidence the special master considered. As the Federal Circuit explained in Whitecotton, “Congress desired the special masters to have very wide discretion with respect to the evidence they would consider and the weight to be assigned that evidence.” 81 F.3d at 1108. In her decision, the special master adequately explained that she considered all of the evidence before her. Second, the Federal Circuit has been equally clear that special masters are entitled to use their “prior experience in reviewing fee applications” to determine a reasonable hourly rate. Saxton, 3 F.3d at 1521. Petitioner has not cited any precedent indicating that the length of a special master’s tenure or the number of attorneys’ fees applications upon which she has personally ruled preclude the special master from using her experience. Cf. Sabella, 86 Fed.Cl. at 217 (“Critical commentary on the special master’s tenure as a special master does not aid petitioner’s argument.”). Therefore, the special master’s reliance on her experience was proper. Overall, a special master has broad discretion to determine a reasonable amount of attorneys’ fees. Saxton, 3 F.3d at 1520. Here, the special master adequately explained the evidence contained in the record and how she chose to evaluate it. Thus, her hourly rate determination was not “based on clearly erroneous findings of fact,” was not “based on erroneous interpretations of the law,” and was not “clearly unreasonable, arbitrary or fanciful.” Cybor Corp., 138 F.3d at 1460. Accordingly, the court finds no abuse of discretion in the special master’s consideration of evidence. e. The Special Master’s Ultimate Hourly Rate Determination Was Not Error Finally, petitioner contends that the special master erred by setting the hourly rates for Mr. McHugh and Mr. Gaynor below their actual billing rates. Specifically, petitioner argues that his attorneys’ actual billing rates — $450 per hour for Mr. McHugh and $450-475 per hour for Mr. Gaynor-— represented the prevailing market rates for their services. It is unquestioned that an attorney’s billing rate may be evidence of the prevailing market rate in some situations. See Missouri v. Jenkins, by Agyei, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (“In determining how other elements of the attorney’s fee are to be calculated, we have consistently looked to the marketplace as our guide to what is ‘reasonable.’ ”); Rattan, 995 F.2d at 278 (“[A]n attorney’s usual billing rate is presumptively the reasonable rate, provided that this rate is ‘in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’” (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541)). *479However, the Federal Circuit’s decision in Avera precludes such a result here. In Avera, the Federal Circuit adopted the Supreme Court’s definition of prevailing market rate: “the rate ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ” 515 F.3d at 1348 (quoting Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541). It then held that when calculating attorneys’ fees under the Vaccine Act, the hourly rate to be used should be the prevailing market rate of the forum, la, the District of Columbia, unless the attorney performed the bulk of the work outside of the forum in a legal market where the attorney’s rates were “substantially lower.” Id. at 1348-49. Thus, the Federal Circuit left no doubt that the forum rate in Vaccine Act eases is distinct from the prevailing market rate for an attorney’s services in his or her home forum. The special master, following the Federal Circuit’s holding in Avera, determined, as a threshold matter, the prevailing market rate in the District of Columbia for services akin to Vaccine Act litigation performed by attorneys with the skill, experience, and reputation comparable to Mi’. McHugh and Mr. Gaynor. Because neither of petitioner’s attorneys practice in the District of Columbia — Mr. McHugh practices law in New York City and Mr. Gaynor practices law in the Central District of California — their usual billing rates are irrelevant when determining the forum rate. Indeed, as the Supreme Court has remarked: [Fee-shifting] statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client Instead, the aim of such statutes was to enable private parties to obtain legal help in seeldng redress for injuries resulting from the actual or threatened violation of specific federal laws. Hence, if plaintiffs ... find it possible to engage a lawyer based on the statutory assurance that he will be paid a “reasonable fee,” the purpose behind the fee-shifting statute has been satisfied. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (emphasis added). Accordingly, the special master’s failure to award petitioner attorneys’ fees based on the hourly rates usually billed by his attorneys was not legal error. f. Conclusion For the foregoing reasons, the court concludes that the special master’s determination of the prevailing market rate for the services provided by petitioner’s attorneys was not arbitrary, capricious, an abuse of discretion, or contrary of law. It therefore overrules petitioner’s first objection to the special master’s decision. D. Objection Two: Mr. McHugh’s Hours 1. Legal Standards Petitioner’s second objection to the special master’s decision relates to the number of hours she awarded for Mr. McHugh’s preparation of a posthearing memorandum. As noted above, the starting point to determining the amount of reasonable attorneys’ fees is the lodestar — the product of the number of hours the attorney reasonably expended on the litigation and a reasonable hourly rate. Avera, 515 F.3d at 1347. When making this initial calculation, the special master “should exclude ... hours that were not reasonably expended.” Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (internal quotation marks omitted), quoted in Saxton, 3 F.3d at 1521; accord Hines, 22 Cl.Ct. at 754 (“The special master is within his discretion in reducing hours that are duplicative, padded, spent on unrelated matters, or not reasonably expended.” (internal quotation marks omitted)). In fact, special masters are “entitled to use their prior experience” to “reduce ... the number of hours claimed in attorney fee requests.” Saxton, 3 F.3d at 1521; accord Slimfold Mfg. Co., 932 F.2d at 1459 (noting that “a district court itself has experience in determining what are reasonable hours ..., and should rely on that experience and knowledge if the documentation is considered inadequate”). Petitioners “bear [] the burden of proving that the number of hours submitted is reasonable, and this is usually done by *480submitting documentation of hours actually worked.” Wasson, 988 F.2d at 131, 1993 WL 18492; accord Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (noting that the “fee applicant bears the burden of ... documenting the appropriate hours expended”); Saunders ex rel. Saunders v. Sec’y of HHS, 26 Cl.Ct. 1221, 1226 (1992) (“Petitioner’s claim was disallowed because the proof was lacking.... [I]t remains counsel’s responsibility to submit proof sufficient to support the point in issue.”), aff'd, 25 F.3d at 1031. This documentation should be complete at the time a petitioner submits an application for attorneys’ fees. Wasson, 24 Cl.Ct. at 484 n. 1. Moreover, prior to submitting a fee application, a petitioner “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary....” Hensley, 461 U.S. at 434, 103 S.Ct. 1933. 2. Proceedings Before the Special Master Petitioner requested that Mr. McHugh be compensated for 146.5 hours for his work on the case up through the submission of his initial application for attorneys’ fees and costs and sixteen hours for his work preparing the amended reply in support of his fee application.18 Rodriguez, 2009 WL 2568468, at *7. Respondent questioned both the reasonableness of the total hours billed by Mr. McHugh and the reasonableness of the time Mr. McHugh spent on certain, specified tasks. Id. at *7, 20. The only hours at issue here are those spent by Mr. McHugh on petitioner’s posthearing memorandum. Petitioner requested that Mr. McHugh be compensated for forty-five hours to prepare the memorandum, which included ten hours to review and annotate the transcript of the one-day hearing. Id. at *20. The special master, after noting that petitioner did not file anything to support the number of hours claimed for this task, reduced the time allowed to twenty-five hours because “of the nature of the resulting project....” Id. 3. Analysis of Petitioner’s Arguments In his motion for review, petitioner asserts that it was necessary for Mr. McHugh to address both his Table claim and his causation-in-faet theory in the posthear-ing memorandum, that Mr. McHugh needed forty-five hours to adequately address both issues, and that forty-five hours is a reasonable amount of time to spend on this task. The special master disagreed with petitioner’s assertion that forty-five hours was a reasonable amount of time to spend on preparing the posthearing memorandum, especially given the resultant product, and reduced the time allowed by twenty hours. The court cannot say that the special master’s conclusion was error. As with the determination of petitioner’s attorneys’ reasonable hourly rate, the determination of the reasonable number of hours expended by Mr. McHugh in representing petitioner was within the special master’s discretion. Saxton, 3 F.3d at 1520. Moreover, the special master had the duty to exclude hours that were not reasonably expended by Mr. McHugh and was entitled to use her prior experience to assist her determination of how many hours were reasonably expended on a particular task, particularly when the documentation provided by Mr. McHugh was inadequate. See id. at 1521; Hensley, 461 U.S. at 434, 103 S.Ct. 1933; Slimfold Mfg. Co., 932 F.2d at 1459. The special master was intimately familiar with the facts and medical theories in this case and had experience from other eases from which to draw upon. Petitioner has not shown that the special master’s reduction of hours was “based on clearly erroneous findings of fact, ... based on erroneous interpretations of the law, or ... clearly unreasonable, arbitrary or fanciful.” Cybor Corp., 138 F.3d at 1460. Thus, the special master’s decision to reduce the hours allowed for the preparation of petitioner’s posthearing memorandum was not an abuse of discretion. E. Objection Three: Observations Concerning the Advocacy of Mr. McHugh and Mr. Gaynor 1. Special Master’s Decision Petitioner’s third enumerated objection concerns the special master’s use of the *481words “intemperate” and “ill-considered” in describing his attorneys’ advocacy in one of the briefs supporting his application for attorneys’ fees and costs. The special master described the commentary contained in peti-tionei’’s brief and the supporting declarations in the following manner: In their [reply in support of petitioner’s supplemental attorneys’ fees application], both Mr. McHugh and Mr. Gaynor engaged in intemperate and ill-considered attacks on respondent’s filing in opposition to the supplemental fee application, calling it “entirely devoid of merit.” They assert that respondent wasted public funds by challenging the hourly rate Mr. Gaynor demanded in the [supplemental fee application]. The declarations of Mr. McHugh and Mr. Gaynor, attached thereto, complain that respondent engaged in unprofessional conduct by commenting on the lack of support in Martindale-Hubbell for Mr. Gaynor’s assertion of his “AV” rating. Mr. McHugh bitterly complained that respondent’s expert filed a deceptive opinion, and Mr. Gaynor claimed respondent filed a “merit less” brief. Rodriguez, 2009 WL 2568468, at *10 (citations & footnotes omitted). She then elaborated on Mr. McHugh’s and Mr. Gaynor’s commentary, beginning with the accusation that respondent wasted public funds: The costs of litigation are certainly an appropriate consideration for respondent in deciding whether to challenge a fees request. However, the cost of litigation is not the only factor. Respondent may well determine that a challenge to Mr. Gay-nor’s rate of compensation now will result in ultimate savings if a special master determines that lower hourly rates are warranted for Mr. Gaynor’s services. In any event, the decision to challenge a fee request is solely within the purview of respondent, and Mr. McHugh’s and Mr. Gaynor’s observations are simply not well-taken. Id. at *10 n. 30. Turning to the Martindale-Hubbell rating issue, she remarked: Petitioner conveniently overlooks the fact that it was Mr. Gaynor who raised the subject of his Martindale-Hubbell AV rating without ever checking the on-line website reflecting his professional credentials with Martindale-Hubbell. It was Mr. Gaynor’s responsibility to ensure that his professional credentials were correctly reflected and respondent cannot be faulted for reporting what she found. Id. at *10 (citation omitted). Finally, with respect to the comments concerning respondent’s expert, the special master noted that “Mr. McHugh’s personal attack on respondent’s expert witness is likewise unfounded, and unfortunately, reflects back to his own expert’s entirely unwarranted personal attack on this same expert’s credentials during the litigation of the entitlement phase of this litigation.” Id. (footnote omitted). With respect to her statement that the attack was “unfounded,” the special master explained: Although the petition alleged both a Table injury and an actual causation claim, if petitioner’s expert addressed the Table injury claim in his initial report, he did so in such an oblique manner that his contention escaped my very careful review. Respondent’s expert’s report focused solely on the actual causation claim made by petitioner’s expert in his initial report in this case. Mr. McHugh’s comments about respondent’s expert ignores the decided difference between the medical term “encephalopathy” and the Table definition of the type of encephalopathy required to demonstrate a Table injury. Id. at *10 n. 31. 2. Analysis of Petitioner’s Arguments Petitioner contends that the special master’s observation that Mr. McHugh and Mr. Gaynor “engaged in intemperate and ill-considered attacks on respondent’s filing” constituted an unwarranted public reprimand of his attorneys that will damage their reputation and could chill vigorous advocacy in future Vaccine Act litigation. He then asserts that each of the special master’s characterizations of his brief and his attorneys’ declarations are without factual or legal basis. First, petitioner argues that the descriptions of respondent’s brief as “entirely devoid of merit” and “merit less” cannot be considered to be “intemperate and ill-considered *482attacks” because the descriptions were followed by supporting legal argument and the special master found some of respondent’s arguments to be unpersuasive. Second, he asserts that it was perfectly logical and reasonable — not intemperate — to point out that the amounts incurred by the public in litigating attorneys’ fees, when the amount at issue was $2,587.10, made no economic sense. Third, petitioner contends that, with respect to respondent’s comments concerning Mr. Gaynor’s Martindale-Hubbell rating, Mr. Gaynor did not accuse respondent of unprofessional conduct in his declaration, and that the statements in Mr. McHugh’s declaration cannot be construed as accusations of unprofessional conduct. Fourth, he argues that Mr. McHugh’s comments about respondent’s expert’s opinion were based in fact; in particular, the expert’s testimony at hearing and criticism of the expert by another special master. Based on these contentions, petitioner asks the court to find that the special master’s remarks were unfounded. As a threshold matter, the court must consider whether it possesses jurisdiction to review and set aside the special master’s comment that Mr. McHugh and Mr. Gaynor “engaged in intemperate and ill-considered attacks on respondent’s filing....” There is no question that the special master’s remarks were not accompanied by any language sanctioning the attorneys. Nor did the special master invoke any ethical rules or rules of professional responsibility. Her remarks were merely criticisms of the attorneys’ commentary. Thus, they cannot constitute, as petitioner contends, a public reprimand. See Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1353 (Fed.Cir.2003) (describing a reprimand as “explict,” “formal,” and “imposed as a sanction”); see also Nisus Corp. v. Perma-Chink Systems, Inc., 497 F.3d 1316, 1320 (Fed.Cir.2007) (explaining that a “formal judicial action” would be something equivalent to “an explicit reprimand or the issuance of some mandatory directive”). In fact, the rules of this court do not provide the special master with the authority to impose a public reprimand.19 Consequently, this court lacks the jurisdiction to review the special master’s remarks. As the Federal Circuit explained in Nisus Corp., “a court’s order that criticizes an attorney and that is intended to be ‘a formal judicial action’ in a disciplinary proceeding is an ap-pealable decision, but ... other kinds of judicial criticisms of lawyers’ actions are not reviewable.” 497 F.3d at 1320. Even if the court possessed jurisdiction to review the special master’s remarks, it would overrule petitioner’s objection in all but one respect. As an initial matter, the court notes that the terms “intemperate” and “ill-considered” do not carry the grave meanings that petitioner contends. An “intemperate” attack is one that is not “[mjoderate in degree or quality[.]” The American Heritage College Dictionary 721, 1419 (4th ed.2004). An “ill-considered” attack is one that is made without “careful thought[.]” Id. at 305. The court concludes that the use of these terms will not seriously damage Mr. McHugh’s or Mr. Gaynor’s reputations or chill vigorous advocacy in Vaccine Act litigation. Indeed, such language has been used in the past without the ill effects feared by petitioner and his attorneys. In Plavin ex rel. Reiss-Plavin v. Secretary of HHS, the Court of Federal Claims characterized certain arguments advanced by the petitioners as “irresponsible and intemperate attacks upon the special master” that were “wholly without merit.” 40 Fed.Cl. 609, 623 (1998). The Court of Federal Claims remanded the ease to the special master to decide certain, discrete issues. Id. at 625. In its decision after remand, the Court of Federal Claims repeated its admonition that “petitioners’ irresponsible and intemperate attacks upon the special master [were] wholly without merit,” and further warned “petitioners’ counsel ... to cease their repeated attempts to discredit the Special Master,” noting the impropriety *483of personal attacks on any jurist. Flavin ex rel. Reiss-Plavin v. Sec’y of HHS, 41 Fed.Cl. 671, 674 (1998), aff'd, 184 F.3d 1380 (Fed.Cir.1999). Despite the remarks by the Court of Federal Claims, however, petitioners’ attorneys in that case, Robert T. Moxley and Richard Gage, continued to represent petitioners in Vaccine Act litigation, and the court is unaware of any resulting decrease in vigorous advocacy on behalf of petitioners. Furthermore, most of the special master’s comments — which, the court reiterates, were directed almost entirely at the advocacy contained within, and in support of, just one of the briefs supporting petitioner’s application for attorneys’ fees and costs — were supported by the record and sufficiently explained in her decision. First, the description of respondent’s brief as lacking any merit whatsoever was demonstrably unfounded. Second, there were perfectly legitimate reasons for contesting the hourly rate sought by petitioner for Mr. Gaynor’s services. Third, Mr. McHugh’s assertion that respondent called Mr. Gaynor’s honesty into question certainly qualifies as an accusation of unprofessional conduct. And fourth, Mr. McHugh’s comments about respondent’s expert were belied by the expert’s report, testimony, and credentials. The one remark made by the special master that is not supported by the record is the contention that Mr. Gaynor accused respondent of unprofessional conduct in his declaration. Petitioner is correct that there is no such accusation in Mr. Gaynor’s declaration. However, the court notes that Mr. Gaynor signed the brief at issue, which contained the following language: Finally, in a desperate attempt to avoid the modest fees sought for Mr. Gaynor in this case, respondent inserts a footnote [in her opposition brief] designed to convey that Mr. Gaynor had lied about his professional credentials, and is really not an AV-rated attorney. Before inserting this implicit, baseless accusation, respondent might have contacted Mr. Gaynor, or telephoned Martindale-Hubbell. Pet’r Reply Mem. Supp. Supplemental Application Attorney Fees 8-9 (citation omitted). Such language could be construed as an accusation of unprofessional conduct. Accordingly, the special master’s improper attribution of an accusation of unprofessional conduct to Mr. Gaynor’s declaration is, at most, a de minimis error. Therefore, the court dismisses petitioner’s third objection to the special master’s decision. IV. CONCLUSION For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART petitioner’s request for judicial notice and DENIES petitioner’s motion for review. Pursuant to Vaccine Rule 30(a), the clerk is directed to enter judgment in accordance with this decision. IT IS SO ORDERED. . In his motion for review, petitioner lodges no objections against the special master's recitation of the factual background and procedural history of this case. Thus, in this section, the court cites to the special master’s decision rather than to the underlying record. . The case was subsequently recaptioned when Mr. Rodriguez was appointed as the administrator of Giavanna's estate. Rodriguez, 2009 WL 2568468, at *1 n. 2. . Petitioners can recover under the Vaccine Act in one of two ways: either by proving an injury listed on the Table or by proving causation-in-fact. See 42 U.S.C. §§ 300aa-l 1(c)(1)(C), - 13(a)(1). Petitioners can prove a Table injury by showing that they, or the affected individual, received a vaccine listed on the Table and suffered an injury, or an acute complication or sequela of that injury, associated with that vaccine within the prescribed time period. Id. §§ 300aa-ll(c)(l)(C)(i), -13(a)(1)(A). To recover under a causation-in-fact theory, petitioners must demonstrate that a vaccine listed on the Table actually caused the alleged injury. Id. §§ 300aa-1 l(c)(l)(C)(ii), -13(a)(1)(A). Respondent can rebut the presumption of a Table injury or a prima facie case of causation-in-fact if she shows that the injury was caused by factors unrelated to the vaccine. Id. § 300aa-l 3(a)(Z )(B). .Petitioner also requested $4,817.48 in costs, $4,200 in unpaid expert costs, and $2,252.16 in petitioner’s costs. Rodriguez, 2009 WL 2568468, at *1. None of these costs is at issue here. . The amended fee request included the addition of sixteen hours for work performed preparing the amended reply. Rodriguez, 2009 WL 2568468, at*l. . The special master misidentified Mr. Van Horn as Daniel F. Horn in her decision. See Resp't Ex. I (declaration of Daniel F. Van Horn). . The Court of Federal Claims, along with its predecessor court, the United States Claims Court ("Claims Court”), has consistently applied this legal standard. See, e.g., Morse v. Sec’y of HHS, 89 Fed.Cl. 683, 686-87 (2009) ("The special master's determination of reasonable attorneys’ fees and costs in a Vaccine Act case is a discretionary ruling that is entitled to deference from this court."); Sabella v. Sec'y of HHS, 86 Fed.Cl. 201, 208 (2009) ("The special master has discretion in determining the reasonable amount of attorneys’ fees and costs to award petitioner.”); Carrington, by Carrington v. Sec’y of HHS, 85 Fed.Cl. 319, 321 (2008) (noting that “[a] special master has significant discretion” in awarding attorneys' fees and costs); Savin, by Savin v. Sec'y of HHS, 85 Fed.Cl. 313, 315 (2008) (remarking that a special master is afforded leeway in determining the reasonable attorneys' fees and costs); Guy v. Sec'y of HHS, 38 Fed.Cl. 403, 405 (1997) ("A special master is given broad discretion in determining the reasonable amount of attorneys' fees and costs."); Estrada ex rel. Anderson v. Sec'y of HHS, 29 Fed.Cl. 78, 81 (1993) ("In reviewing a special master's decision on attorneys' fees and costs, the court allows the special master reasonably broad discretion in calculating the awards.” (internal quotation marks omitted)); Lonergan ex rel. Louergan v. Sec'y of HHS, 27 Fed.Cl. 579, 580 (1993) ("[T]his court must grant the special master wide latitude in determining the reasonableness of an award of attorneys' fees.”); Ferreira, 27 Fed.Cl. at 34 ("The special master is afforded wide discretion in determining the reasonableness of costs, as well as attorney's' fees.”); Hines ex rel. Sevier v. Sec’y of HHS, 22 Cl.Ct. 750, 753 (1991) ("[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys' fees and costs.”); cf. Murphy, 30 Fed.Cl. at 61 ("The special master's decision denying attorneys' fees or costs is reviewed under an abuse of discretion standard because the determination is based on a discretionary function allowing him to deny fees if he finds that the petition was not brought in good faith and upon a reasonable basis."). . In Wasson, the Claims Court approved the special master's methodology in determining the reasonable fees and costs but remanded the case to the special master to provide sufficient findings and analysis to allow the court to properly review her decision. 24 Cl.Ct. at 483. Once the special master provided the required detail, Wasson, by Wasson v. Sec’y of HHS, No. 90-208V, *4631992 WL 26662 (Fed.Cl.Spec.Mstr. Jan. 2, 1992), the Claims Court affirmed her fees and costs decision in a February 21, 1992 unpublished order. The Federal Circuit affirmed the Claims Court’s February 21, 1992 decision on appeal. See Wasson, by Wasson v. Sec’y of HHS, 988 F.2d 131, 1993 WL 18492 (Fed.Cir.1993) (unpublished table decision). *465award based on the Laffey matrix by twenty-five percent to ensure reasonableness). . The Laffey matrix is a schedule of "the prevailing rates in the community for lawyers of comparable skill, expertise and reputation in complex federal litigation” approved for use in a Title VII employment discrimination case by the United States District Court for the District of Columbia ("D.C. District Court”). Laffey v. Nw. Airlines, Inc., 572 F.Supp. 354, 371-75 (D.D.C.1983), aff'd in pan, rev'd in part, 746 F.2d 4 (D.C.Cir.1984); cf. Rodriguez, 2009 WL 2568468, at *6 (describing the contents of the declaration of Mr. Rezneck, one of the attorneys assigned to litigate the fee application in Laffey on the plaintiffs' behalf). The matrix describes "hourly rates for lawyers of differing levels of experience^]" Laffey, 572 F.Supp. at 371. Although the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit”) reversed the D.C. District Court’s determination of the reasonable hourly rate in Laffey on appeal, it later approved of the use of the Laffey matrix in an en banc opinion. See Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1525 (D.C.Cir.1988) (en banc) ("We do not intend ... to diminish the value of the fee schedule compiled by the District Court in Laffey. Indeed, we commend its use for the year to which it applies.”). The Laffey matrix included hourly rates for work performed prior to July 1983. Laffey, 572 F.Supp. at 360, 375; see also Save Our Cumberland Mountains, Inc., 857 F.2d at 1525 (commending the use of the Laffey matrix "for the year to which it applies” and remanding the case to the district court to determine the "reasonable hourly rates at the time the services were performed”). For subsequent years, the D.C. Circuit has approved the use of two different matrices within its circuit as evidence of "the prevailing market rates in the relevant community for attorneys of reasonable comparable skill, experience, and reputation.” Covington v. District of Columbia, 57 F.3d 1101, 1108-09 (D.C.Cir.1995); see also DL v. District of Columbia, 256 F.R.D. 239, 242-43 (D.D.C.2009) (describing the two matrices); cf. Rodriguez, 2009 WL 2568468, at *5 (noting that Mr. Van Horn, the individual currently tasked with updating the matrix for the Civil Division of the United States Attorney's Office for the District of Columbia, explained that the matrix he prepares is distinct from the so-called adjusted Laffey matrix). First, some judges on the D.C. District Court have used a matrix developed by the Civil Division of the United States Attorney’s Office for the District of Columbia. See e.g., Blackman v. District of Columbia, 59 F.Supp.2d 37, 43 (D.D.C.1999) (using the matrix as a "point of reference” for determining reasonable hourly rates), abrogated in part on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). This matrix is used in cases involving a fee-shifting statute that permits a prevailing party to recover reasonable attorneys’ fees. Resp’t Ex. I at 11 5. The hourly rates are revised each year "by adding the increase in the Consumer Price Index for All Urban Consumers for the Washington, D.C. area to the corresponding rates for the prior year, ... subject to further adjustment to ensure” consistency. Id. 114. Second, oilier judges of the D.C. District Court have used an updated version of the Laffey matrix that adjusts the hourly rates for each year based on the legal services component of the nationwide Consumer Price Index. See, e.g., Salazar v. District of Columbia, 123 F.Supp.2d 8, 13-15 (D.D.C.2000) (concluding that the updated Laffey matrix more accurately reflected "the prevailing rates for legal services in the D.C. community.”). Of course, il bears noting that in certain situations, the D.C. District Court has declined to adopt either matrix. See, e.g., Agapito v. District of Columbia, 525 F.Supp.2d 150, 155 (D.D.C.2007) (concluding that the matrix prepared by the United States Attorney’s Office for the District of Columbia did not apply to simple administrative proceedings under the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA")); Muldrow v. ReDirect, Inc., 397 F.Supp.2d 1, 4-5 (D.D.C.2005) (concluding lhat the Laffey matrix did not apply in a "relatively straightforward negligence suit” and accordingly reducing the attorneys' fees . The information provided by petitioner was published in The National Law Journal on December 10, 2007, and was derived from survey responses from some of the nation’s largest law firms. See Am. Reply Mem. Ex. O. The data for each firm included the number of attorneys at the firm and the hourly rates for partners and associates. See id. The six entries for Washington, DC law firms were as follows: Arent Fox (329) Covington & Burling (608) Partners $395-$675 Partners $510-$800 Associates $240-$440 Associates $240-$525 Dickstein Shapiro (388) Partners $425-$825 (average $552) (median $550) Associates $225-$440 (average $336) (median $360) Firmwide (average $438) (median $425) Hogan & Hartson (1,092) Partners $300-$850 (average $600) (median $590) Associates $150-$525 (average $385) (median $370) Firmwide (average $490) Patton Boggs (518) Partners $320-$920 (average $536) (median $525) Associates $205-$520 (average $375) (median $385) Firmwide (average $456) (median $455) Wilmer Cutler Pickering Hale and Dorr (1,051) Partners $475-$ 1,000 Associates $215-$495 Id. . In a nonbinding decision awarding attorneys’ fees in a Wn-zsiar-related case, the Court of Federal Claims did use the Laffey matrix, proclaiming il to be "a reasonable guide to the prevailing market rates for lawyers prosecuting complex *469federal litigation in the District of Columbia First Fed. Sav. & Loan Ass'n of Rochester v. United States, 88 Fed.Cl. 572, 586 (2009). . Petitioner is not alone in attributing the language in Monteverdi concerning the complexity of Vaccine Act litigation to the Claims Court rather than the special master; other petitioners, and even two special masters, have also done so. See Rupert, by Rupert v. Sec'y of HHS, 55 Fed.Cl. 293, 299 (2003) (noting that petitioner cited Monteverdi for the proposition that Vaccine Act litigation was complex); Walmsley, 2009 WL 4064105, at *7 n. 13 (attributing the quotation to the Claims Court); Erickson v. Sec'y of HHS, No. 96-36IV, 1999 WL 1268149, at *4 n. 8 (Fed.Cl.Spec.Mstr. Dec. 10, 1999) (same). . As originally enacted, the Vaccine Act allowed special masters to propose findings of facts and conclusions of law, and “[u]pon objection by the petitioner or respondent to the proposed findings of facts or conclusions of law prepared by the special master or upon the court’s own motion," the Claims Court was required to “undertake a review of the record” and could then, if warranted, "make a de novo determination of any matter and issue its judgment accordingly....” Pub.L. No. 99-660, § 311(a), 100 Stat. 3743, 3762 (codified as amended at 42 U.S.C. § 300aa-12(d)(3)(A), -12(e)). In 1989, Congress amended the Vaccine Act to require special masters to issue decisions and to change the Claims Court's standard of review to one that was more deferential. See Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 6601 (g)-(h), 103 Stat. 2106, 2288-90 (codified at 42 U.S.C. § 3OOaa— 12(d)(3)(A), -12(e)). In Monteverdi, the petition was pending and the evidentiary record was closed prior to the effective date of the amendment to the Vaccine Act-December 19, 1989. See Monteverdi, 19 Cl.Ct. at 411 (noting that the special master issued his Report and Recommendation on December 5, 1989). As a result, the Claims Court was required "to proceed ... in accordance with the law in effect before the dale of the enactment” of the amendment. Omnibus Budget Reconciliation Act of 1989, § 6601 (s)(l)(B), 103 Stat. at 2293. . Subsequent to the special master's decision on attorneys’ fees and costs in this case, another special master concluded that Vaccine Act litiga*473tion constituted complex federal litigation. See Walmsley, 2009 WL 4064105, at *12. . In addition, it bears noting that not all Vaccine Act cases are alike. Cases encompassing Table injuries are typically less complicated than those where causation-in-lact must be proven. And, causation-in-fact cases themselves have differing levels of complexity. Thus, it would be a mistake to characterize all Vaccine Act litigation as equally complex. . The Federal Circuit has not discussed the use of the Laffey matrix outside of the Vaccine Act context. The Court of Federal Claims has mentioned the Laffey matrix outside of the Vaccine Act context in only two published decisions. See First Fed. Sav. & Loan Ass'n of Rochester, 88 Fed.Cl. at 586 (using the Laffey matrix in a Winstar-related case); Filtration Dev. Co. v. United States, 63 Fed.Cl. 612, 623-24 & n. 19 (2005) (finding it unnecessary to address plaintiff's Laf-fey matrix arguments). . Petitioner also requested that Mr. Gaynor be compensated for 22.4 hours for the work performed responding to the special master's July 17, 2008 order. Rodriguez, 2009 WL 2568468, at *7. These hours are not at issue here. . The Court of Federal Claims recently amended the Vaccine Rules, effective January 11, 2010, to grant special masters the authority to “order a party, its attorney, or both to pay the reasonable expenses — including attorney’s fees — incurred because of any noncompliance with a scheduling or other pretrial order unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.” Vaccine Rule 5(c)(1). However, this authority is limited to monetary sanctions, and does not extend to formal public reprimands. ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_06-vv-00559-cl-extra-855946 Date issued/filed: 2013-03-01 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 855946 -------------------------------------------------------------------------------- IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 06-559V Filed: March 1, 2013 To be Published ******************************** GABRIEL G. RODRIGUEZ, * as administrator of the estate of, * Giavanna Maria Rodriguez, for the benefit of * Gabriel Gene Rodriguez and * Jennifer Ann Rodriguez * * Attorneys’ Fees and Costs; “Fees Petitioner, * for Fees”; Law of the Case v. * Doctrine; Federal Circuit Rule * 47.7; Motions for Review of Fees SECRETARY OF HEALTH * and Costs Decisions AND HUMAN SERVICES, * * Respondent. * ******************************** John F. McHugh, Esq., Law Office of John McHugh, New York, NY, for petitioner. Darryl R. Wishard, Esq., U.S. Dept. of Justice, Washington, DC, for respondent. DECISION ON FEES AND COSTS1 Vowell, Special Master: This fees and costs application [“Fee App.”]has a convoluted procedural history, stretching from the initial fees application before me in 2008, to a request for review by the Supreme Court of the United States [“Supreme Court”] in 2011, followed by a return to this court in 2012. If any case better illustrates the quagmire that “fees for fees”2 litigation has become in the Vaccine Program, I have not found it. 1 Because this published decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in accordance with the E- Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will delete such material from public access. 2 “Fees for fees” is a term commonly employed in the Vaccine Program to refer to fees awarded for work on the initial fees application, as well as any challenge to or appellate litigation of the initial fees application filed before the special master. “Fees for fees” thus encompasses fees for preparation of an application for attorneys’ fees and costs, a reply brief filed after respondent formally opposes a fees and costs application, and the fees and costs associated with a successful or unsuccessful motion for review I am not optimistic that this decision will end the litigation over attorneys’ fees and costs in this case. Rather, it is likely to trigger yet another Jarndyce v. Jarndyce-esque3 round of filings and motions. This litigation is unlikely to consume the trust fund that pays attorneys’ fees and costs awards, but it has certainly consumed considerable time and effort. Fees for fees litigation has been—at least until the Federal Circuit’s summary denial of a portion of the fees requested in this case—fueled in part by the lack of any financial disincentive for repetitive appeals of decisions denying any portion of any fees and costs application. In this decision, I deny the portion of petitioner’s fees application4 that was considered and rejected by the Federal Circuit. With regard to this portion of the instant fees application, I question whether any attorney outside the Vaccine Program, which has routinely paid attorneys for unsuccessful appeals of adverse fees decisions, would seriously consider making the arguments that petitioner’s counsel makes before me. In effect, he asks me to overrule the Federal Circuit panel that considered and denied these fees in the first instance. For the reasons stated below, I decline the opportunity. The remaining portion of this fees application consists of a request for fees and costs for work that was not part of petitioner’s Federal Circuit motion. This work involved the motion for review of my initial fees and costs decision. Based on both precedent and policy, I grant in part and deny in part petitioner’s request for fees for his 2009 motion for review. I. Procedural History. A. The Entitlement Case. On July 31, 2006, petitioners Gabriel and Jennifer Rodriguez, 5 filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § of a special master’s fees and costs decision. A motion for review before a judge of the Court of Federal Claims may include oral argument as well as briefs on the issues raised. “Fees for fees” may also include an appeal, successful or otherwise, to the United States Court of Appeals for the Federal Circuit [“Federal Circuit”] of a denial of or reduction to fees. In this case, it also includes fees for filing a petition for certiorari before the Supreme Court and for coordinating the filing of amicus pleadings on that petition. 3 This fictional case from Charles Dickens’ novel BLEAK HOUSE depicts the systemic flaws in the nineteenth century Chancery Court in Great Britain. In the novel, the cost of litigation over a will consumes the estate at issue. 4 The convention in the Vaccine Program is to refer to requests for fees and costs as petitioner’s requests or applications, even though the vast majority of these requests primarily involve their attorneys’ fees and only modest amounts of the costs awards go directly to petitioners themselves. The Vaccine Act’s § 15 has been interpreted as requiring the payment to be made to petitioner, even though the attorney is legally entitled to the funds, and the attorneys are the real parties in interest in most fees and costs applications. See Heston v. Sec’y, HHS, 41 Fed. Cl. 41 (1998); Newby v. Sec’y, HHS, 41 Fed. Cl. 392 (1998). 5 Pursuant to my order of September 14, 2007, Gabriel Rodriguez secured appointment as the administrator of his daughter’s estate. The case was subsequently recaptioned to reflect a claim on 2 300aa-10, et seq.6 [the “Vaccine Act” or “Program”], based on the death of their daughter, Giavanna Maria Rodriguez. Unlike the fees and costs phase, the entitlement case was resolved expeditiously. In November 2007, after an entitlement hearing, I approved a stipulated settlement in this case, and awarded petitioner the agreed-upon compensation.7 B. Fees and Costs before the Special Master. Because petitioner was compensated for a vaccine injury, he was also entitled to an award of reasonable fees and costs.8 § 15(e)(1). Petitioner filed his application for attorneys’ fees and costs on February 25, 2008 seeking $450.00 per hour for his attorney, Mr. John McHugh. However, on April 3, 2008, he filed an amended application seeking the so-called “Laffey Matrix”9 hourly rates of $598-$645.00 per hour. After extensive briefing by both parties, I issued a decision on July 27, 2009, awarding $59,647.71 in fees and costs to petitioner, $57,395.55 of which represented compensation for his counsel’s time and costs.10 Rodriguez v. Sec’y, HHS, No. 06- 559V, 2009 WL 2568468 at *24 (Fed. Cl. Spec. Mstr. July 27, 2009). The hourly rates I awarded ($310 to $335 for Mr. McHugh and $270 to $275 for Mr. Gaynor) represented my calculation of the forum rates for 2006 through 2009. The $156,792.92 in attorneys’ fees and costs petitioner seeks in his current fee application is for work conducted and expenses generated after my fee decision was issued. C. Motion for Review of the Fees and Costs Award. Because I did not award Laffey Matrix rates and concluded that Mr. McHugh, petitioner’s counsel of record, and Mr. Gaynor, the associate counsel who worked on the fees and costs application, were instead entitled to the forum rate, petitioner filed a behalf of the estate. Order, filed Oct. 5, 2007. I will therefore refer to Gabriel Rodriguez as “petitioner” throughout the remainder of this opinion. 6 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2006). 7 After the entitlement hearing, I ordered respondent to show cause why I should not find that Giavanna’s death constituted a Vaccine Table injury, for which causation is presumed. Order, filed Sept. 14, 2007. Subsequently, the parties settled the case. 8 Whether winning the entitlement case also entitles petitioner to fees for fees for an unsuccessful but non-frivolous motion for review is an issue addressed below. 9 The applicability of the Laffey Matrix, a method for calculating attorneys’ fees for prevailing parties in the U.S. District Court for the District of Columbia based on Laffey v. Northwest Airlines, 572 F. Supp. 354 (D. DC 1983), was the primary issue in petitioner’s motion for review and subsequent appellate litigation in this case. 10 This included fees for Mr. Gilbert Gaynor, an attorney who worked on the additional briefing I ordered regarding the Laffey Matrix rates request. 3 motion for review of my decision with the Court of Federal Claims on August 26, 2009. After briefing and oral argument, Judge Sweeney of the Court of Federal Claims denied the petition for review on January 22, 2010. Rodriguez v. Sec’y, HHS, 91 Fed. Cl. 453 (2010). D. Subsequent Review. Petitioner appealed to the Federal Circuit. More briefing and oral argument ensued, and, once again, petitioner’s request for Laffey Matrix hourly rates was unsuccessful. Rodriguez v. Sec’y, HHS, 632 F.3d 1381 (Fed. Cir. 2011). Petitioner’s request for a rehearing en banc was denied on April 18, 2011. Id. Petitioner filed an application for a writ of certiorari with the Supreme Court on July 27, 2011. That application was denied on November 28, 2011. Rodriguez v. Sebelius, 132 S. Ct. 758 (2011). E. Fees for Fees at the Federal Circuit. On December 24, 2011, petitioner filed a motion for attorneys’ fees and costs with the Federal Circuit [“Fed. Cir. Fee Motion”] pursuant to Rule of the Federal Circuit [“RFC”] 47.7. In this motion, petitioner requested attorneys’ fees and costs for his Federal Circuit appeal of Judge Sweeney’s decision denying Laffey Matrix rates, the request for an en banc hearing, and the filing of his certiorari petition. Petitioner did not request payment for any work or expenses associated with the motion for review filed in the Court of Federal Claims. Petitioner’s tactical reason for filing first with the Federal Circuit is clear from his motion. He wanted the court to consider whether “the hourly rates for attorneys that have been held appropriate in procedurally simplified Vaccine Act proceedings before the special masters of the Court of Federal Claims [are] also appropriate for appellate litigation before the Supreme Court and this Court.” Fed. Cir. Fee Motion, filed as Respondent’s Exhibit [“Res. Ex.”] I, at 2. If he obtained a higher hourly rate before the Federal Circuit, he could argue that the higher rate should also apply to his work on the motion for review before the Court of Federal Claims. Before the Federal Circuit, respondent argued that the motion should be remanded to the Court of Federal Claims, asserting that such fees requests should be filed there in the first instance. In the alternative, respondent argued that if the Federal Circuit elected to rule on the fees motion, no fees should be awarded because petitioner had been unsuccessful in his appeal before the Federal Circuit, making the fees for fees request unreasonable under § 15(e)(1). Respondent also asserted that the requested hourly rates and number of hours billed were unreasonable and excessive. Respondent’s Response to Fee App. at 3; see also Respondent’s Response to Fed. Cir. Fee Motion, filed as Res. Ex. J and as Ex. D to Gaynor’s Declaration, filed with the Fee App. 4 On February 17, 2012, the Federal Circuit denied petitioner’s request, without weighing in on the question posed by petitioner. The per curiam order states in its entirety: Petitioner Gabriel Rodriguez seeks an award of attorney’s fees following his unsuccessful appeal challenging the method of calculation and amount of attorney’s fees he was awarded under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§300aa-1 to -43 (“Vaccine Act”), as amended. The motion for an award of attorney’s fees for his unsuccessful appeal is denied. Rodriguez v. Sec’y, HHS, No. 2010-5093 (Fed. Cir. Feb. 17, 2012) (per curiam order denying motion for attorneys’ fees and costs) [“Fed. Cir. Fee Order”]. F. The Instant Application for Fees and Costs. On March 12, 2012, petitioner filed the instant application,11 seeking not only an award of $28,883.00 in attorneys’ fees for the motion for review before the Court of Federal Claims, but also an award for the fees for fees litigation before the Federal Circuit and the Supreme Court. Respondent opposed petitioner’s request in a March 20, 2012 filing.12 Petitioner filed a reply brief on March 26, 2012.13 I held a status conference to discuss the application on April 18, 2012, during which I referenced Cloer v. Sec’y, HHS, 675 F.3d 1358 (Fed. Cir. 2012) [“Cloer II”] as bearing on part of petitioner’s argument. On April 24, 2012, petitioner requested leave of the court to file a supplemental memorandum addressing the impact of Cloer II on his fee application. The memorandum [“Pet. Memo”] also included a request for $2,686.00 in additional fees.14 I granted petitioner’s motion for leave on April 27, 2012, and respondent filed a response to petitioner’s supplemental memorandum [“Res. Memo”] on April 30, 2012. The matter is now briefed and ripe for decision. 11 Petitioner attached several documents to his application: Declaration of Gilbert Gaynor with supporting exhibits, Declaration of John F. McHugh with supporting exhibits, Declaration of Michael T. Kirkpatrick, and Declaration of Deborah Drooz. 12 Respondent included three exhibits with her response: Exhibit I (Fed. Cir. Fee Motion), Exhibit J (Respondent’s Response to the Fed. Cir. Fee Motion), and Exhibit K (Fed. Cir. Fee Order). 13 Petitioner attached three exhibits to his reply brief containing pleadings filed with the Federal Circuit in Masias v. Sec’y, HHS, No. 2010-5077: Exhibit 1 (Motion to Withdraw Application for Award of Appellate Attorneys’ Fees and Costs), Exhibit 2 (Respondent’s Response in Opposition to Petitioner’s Motion to Withdraw Application for Award of Appellate Attorney’s Fees and Costs), and Exhibit 3 (Order granting Motion to Withdraw). 14 Attached to this memorandum was a supplemental declaration of Mr. Gaynor. I will refer to the declaration filed with the instant fee application as “Gaynor’s First Declaration” and the one filed with the memorandum as “Gaynor’s Second Declaration.” 5 II. Analysis of Legal Issues Presented. The instant application for fees and costs requires me to determine the effect of the Federal Circuit’s denial of petitioner’s fees motion on both his renewed application for those same fees [hereinafter “Fed. Cir. fees”] and on his initial fees application for his Court of Federal Claims motion for review [hereinafter “CFC fees”]. Petitioner’s request that I award fees and costs for work for which compensation was denied by the Federal Circuit raises issues that are novel in the context of fees and costs applications before special masters. For the reasons set forth below, I conclude that I am without authority to award fees and costs for the appellate work before the Federal Circuit or the Supreme Court. However, I conclude that petitioner is entitled to an award of fees for the work performed during petitioner’s motion for review by the Court of Federal Claims, albeit in an amount smaller than requested. A. Fees for Appellate Work in the Federal Circuit and Supreme Court. The parties’ disagreement on the effect of the Federal Circuit’s denial of petitioner’s fee motion in this case raises issues related to preclusion, law of the case, and the impact of two recent Federal Circuit decisions on the award of fees and costs. See Fee App. at 4-6; Response at 5-8. 1. Claim Preclusion and Issue Preclusion. Petitioner argues that neither the doctrine of claim preclusion nor the related doctrine of issue preclusion affects his request for fees for fees. Fee App. at 6. In essence, he claims that the Federal Circuit’s February 17, 2012 order has no impact on my authority to award payment for his Federal Circuit appeal and petition for certiorari. Claim preclusion or res judicata bars a second suit between the same parties based on the same cause of action as the first suit if there was a judgment on the merits in the prior suit. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979). Issue preclusion or collateral estoppel prevents parties in a second suit involving a different cause of action from re-litigating issues presented and decided in a prior suit. Id. Petitioner argues that the Federal Circuit’s failure to state why his request was denied means that the order was not a “final judgment” and does not invoke either preclusion doctrine.15 Petitioner may be correct in his assertion that neither claim 15 Petitioner agrees that claim preclusion bars a second suit if “there has been an earlier final judgment on the merits of a claim.” Fee App. at 6 (quoting Jet, Inc., v. Sewage Aeration Sys., 223 F.3d 1360, 1362 (Fed. Cir. 2000) citing Parklane, 439 U.S. at 326). However, petitioner claims that the Federal Circuit’s failure to explicitly state a basis for its action on his fees and costs request means that it is not a final judgment. Thus, petitioner contends that the doctrine of claim preclusion does not bar me from awarding fees and costs for the same work. Because respondent opposed the Fed. Cir. Fee Motion on several grounds, and because the order does not indicate which, if any, of respondent’s arguments the Federal 6 preclusion nor issue preclusion prevents me from awarding him the fees initially sought in his Fed. Cir. Fee Motion, albeit for different reasons than he articulates.16 Because the law of the case doctrine requires denial of these fees, a thorough analysis of whether claim or issue preclusion affects this application is unnecessary.17 2. Application of Law of the Case Doctrine. The law of the case doctrine is a judicially created doctrine that “promotes the finality and efficiency of the judicial process by protecting against the litigation of settled issues.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). It covers issues decided explicitly and those that are necessarily inferred from the disposition. Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir. 1985). The doctrine is based on the principle that “a litigant given one good bite at the apple should not have a second.” Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 890 (Fed. Cir. 1984). Under the law of the case doctrine, courts generally refuse to reconsider an issue decided at an earlier stage of the litigation. Suel v. Sec’y, HHS, 192 F.3d 981, 984 (Fed. Cir. 1999). However, if a trial judge determines that exceptional circumstances are present, specifically if “the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice” then the judge may opt against applying the doctrine and elect not to enforce the prior rulings of an appellate court. Smith Int'l, Inc., v. Hughes Tool Co., 759 F.2d 1572, 1576 (Fed. Cir. 1985); see also Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001); Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006); Outside the Box Innovations, LLC, v. Travel Caddy, Inc., 695 F.3d 1285, 1302 (Fed. Cir. 2012). Respondent maintains that the Federal Circuit’s order bars petitioner from seeking in this court the same fees and expenses he previously sought in the Fed. Cir. Fee Motion. Although the Circuit’s denial order does not directly address the arguments raised in respondent’s opposition, respondent contends that the Federal Circuit implicitly addressed them and the law of the case doctrine should apply. Response at 6. Circuit found persuasive, petitioner argues that the order cannot be viewed as a judgment on the merits. Fee App. at 6. Jet listed four factors necessary to establish issue preclusion. One factor is established by a showing that “the determination of the issues was necessary to the resulting judgment.” Jet, 223 F.3d at 1366. Because the Federal Circuit’s order does not explain why the request for fees was denied, petitioner contends that this factor is not satisfied. Fee App. at 6. Petitioner dismisses the possibility that the court denied fees because of the unsuccessful nature of his appeal, by noting that the Vaccine Act’s fee provision is not a prevailing party statute. Additionally, petitioner states that an absolute “no fees for fees” position would be a drastic change in the law, and would thus warrant a longer opinion. Fee App. at 6. 16 Both doctrines apply to a second suit filed by a party, and here there is only one underlying suit. 17 Respondent did not dwell upon either claim or issue preclusion in her response brief, arguing instead that neither principle “circumvent[s] the application of the law of the case doctrine.” Response at 7. 7 In his reply brief, petitioner argues that the law of the case doctrine is not applicable to his fee application. Reply at 2-7. Petitioner asserts that an unexplained decision cannot establish a rule of law, and that even if the denial order in this case had been published it could not be cited as authority for any legal rule and thus is not subject to the law of the case doctrine. Id. at 2. Petitioner is mistaken. Non-precedential orders of the Federal Circuit may be relied upon for guidance or persuasive reasoning by courts and parties may cite to non- precedential dispositions when asserting law of the case. RFC 32.1(c) and (d); see also Federal Circuit Internal Operating Procedure No. 9 (stating that non-precedential orders “shall not be employed as binding precedent except in relation to a claim of res judicata, collateral estoppel, or law of the case”).18 Petitioner’s reply brief also refers to the statement in Augustine v. Principi that “[a] necessary predicate to application of law of the case, is, therefore, that the legal issue in question has actually been decided.” Augustine v. Principi, 343 F.3d 1334, 1339 (Fed. Cir. 2003). Petitioner again argues that, as the per curiam order did not directly address respondent’s objections to the Fed. Cir. Fee Motion, the order cannot be viewed as having determined the legal issue in question. Reply at 2-3. In Augustine, the Federal Circuit held that the issue of whether Augustine was entitled to a higher rate of special monetary compensation [“SMC”] had never been “finally decided,” and thus language from a prior decision could not be considered the law of the case. Augustine, 343 F.3d at 1339. Augustine was trying to use language from a 1998 United States Court of Appeals for Veterans Claims remand decision as proof that he had demonstrated a particular level of injury to his elbow, warranting a higher SMC rate. Id. The Federal Circuit held that the remand decision, which included instructions for the Board of Veterans’ Affairs to use in making a decision regarding the appropriate SMC rate, indicated that the Court of Appeals for Veterans Claims had not decided the legal issue in question. Therefore, the language Augustine was attempting to rely upon did not constitute the law of the case. Id. Petitioner’s case is distinguishable from Augustine. The Federal Circuit considered petitioner’s request for fees and costs, but it did not remand it to a lower court for a decision as respondent requested. Instead, the Circuit unmistakably denied petitioner’s request. As respondent notes, in issuing the denial order the Federal Circuit implicitly rejected her argument that petitioner must first file for fees with the special master, as well as her suggestion to remand to the U.S. Court of Federal Claims. Because the Federal Circuit did not remand, it must have determined that the Circuit was an appropriate forum in which to seek fees.19 Because the Circuit also denied the 18 The Federal Circuit’s Internal Operating Procedures are publically available on the court’s website, http://www.cafc.uscourts.gov/images/stories/rules-of-practice/IOPsMaster.pdf (last visited Feb. 28, 2013). 19 Petitioner notes in his reply brief that respondent did not cite any authority which would authorize remand of the fee motion. Petitioner contends that RFC 47.7 has no remand provision and that the rule presumes the Federal Circuit will either grant or deny a party’s fee motion and then, in the event a party’s fee motion is denied, permit the party requesting fees to decide whether to seek fees elsewhere. Reply at 8 application for fees, the court necessarily decided that petitioner was not entitled to additional fees in this case. Response at 7. Petitioner also argues that it is unlikely the Federal Circuit would have adopted respondent’s argument that fees for fees are unavailable for unsuccessful appeals of fee decisions because doing so would be a significant departure from the existing case law20 and one warranting a longer, more in-depth order. Reply at 5. Petitioner seems to ignore the possibility that the Federal Circuit’s order does not represent a new precedent concerning fees for fees and instead simply reflects the Court’s analysis of the request for appellate fees in this particular case. As the Federal Circuit’s Internal Operating Procedure No. 10 notes, non-precedential orders “should not unnecessarily state the facts or tell the parties what they argued or what they otherwise already know. It is sufficient to tell the losing party why its arguments were not persuasive.” 3. Relevance of Masias v. Sec’y, HHS. Petitioner also relies upon the Federal Circuit’s action in Masias v. Sec’y, HHS,21 another Vaccine Act case, to support his position that the Fed. Cir. Fee Order does not bar me from awarding him the Federal Circuit fees. Like Mr. Rodriguez, the petitioner in Masias first filed a motion for fees and costs with the Federal Circuit for his unsuccessful appeal of the special master’s decision on fees and costs to the Federal Circuit. When the Circuit denied Mr. Rodriguez’s fee motion, the petitioner in Masias moved to withdraw his application. Masias Motion to Withdraw, filed as Reply Exhibit 1. Respondent opposed the motion to withdraw on the grounds of judicial economy, as the matter was fully briefed before the Federal Circuit, but the court permitted the withdrawal. Respondent’s Response to Masias Motion to Withdraw, filed as Reply Exhibit 2; Order Granting Motion to Withdraw, filed as Reply Exhibit 3. Mr. Masias 3. Petitioner cites no authority for this strained interpretation of RFC 47.7. This rule “merely defines procedures for requesting attorney fees from [the Federal Circuit]; it does not, and cannot, confer upon the Federal Circuit the exclusive jurisdiction to award such fees or restrict district court authority under federal or state law.” Concept Design Elec. and Mfg., Inc., v. Duplitronics, Inc., 79 F.3d 1167 at *1 (Fed. Cir. 1996) (unpublished table decision). However, in a decision issued after the reply brief was filed, the Federal Circuit implicitly ruled that it had authority to remand a fees application. See Cloer II, 675 F.3d at 1364 (remanding a fees application to the Court of Federal Claims to determine if the petition was reasonably filed). Section II.A.4 below discuses Cloer II in more detail. 20 In particular, petitioner cites to Morse v. Sec’y, HHS, 93 Fed. Cl. 780 (2010) and Friedman v. Sec’y, HHS, which he cited as No. 02-1467V, 2010 WL 4340986 (Fed. Cl. Oct. 6, 2010). I note that Friedman was a decision of a special master, not a judge of the Court of Federal Claims. However, neither decision constitutes “binding precedent” that a decision on fees for fees could not consider the merits of the fees appeal in determining whether to award additional fees for that appeal. See Hanlon v. Sec’y, HHS, 40 Fed. Cl. 625, 630 (1998) (noting that decisions issued by special masters and judges of the Court of Federal Claims constitute persuasive, but not binding authority). 21 Masias v. Sec’y, HHS, is case number 99-697V in the Court of Federal Claims, and 2010-5077 in the Federal Circuit. 9 subsequently filed a fees application before the special master, who elected to award none of the requested fees. Masias v. Sec’y, HHS, No. 99-697V, 2012 WL 2581403 (Fed. Cl. Spec. Mstr. June 7, 2012). His decision was reversed and remanded by Judge Hodges of the Court of Federal Claims. Masias v. Sec’y, HHS, 106 Fed. Cl. 700 (2012). A decision awarding some of the requested fees was issued on January 31, 2013. Masias v. Sec’y, HHS, No. 99-697V, 2013 WL 658439 (Fed. Cl. Spec. Mstr. Jan. 31, 2013). Petitioner argues that the granting of the motion to withdraw in Masias illustrates that the Federal Circuit has rejected respondent’s depiction of the denial order as a decision on the merits. Reply at 6-7. This is a very strained interpretation of the Circuit’s action. I read the Federal Circuit’s order in Masias as simply reflecting the shared jurisdiction over fees and costs applications that exists in Vaccine Act cases. Petitioners may elect to file for appellate fees in the first instance in the Court of Federal Claims or in the Federal Circuit. Mr. Rodriguez elected to file in the Federal Circuit. The petitioner in Masias initially made the same election and then reconsidered his choice of forum. The basis for petitioner’s arguments about the Masias order’s impact on the instant case eludes me. The issue is not whether petitioner could have requested that the Court of Federal Claims decide his appellate fees request in the first instance. Clearly Mr. Rodriguez could have filed his fee application in either court. The issue here is whether I can grant a request for the same fees that the Federal Circuit has already denied. Although the denial order does not make reference to the arguments of the parties,22 it is a denial of the very fees and costs that Mr. Rodriguez now requests that I grant. Seeking to withdraw an application in order to file it elsewhere does not implicate the law of the case doctrine. Asking a lower court to grant the same fees and costs that a higher court has denied does implicate that doctrine. See Masias, 106 Fed. Cl. at 703 n.3 (suggesting that the Federal Circuit’s Fee Order would be “persuasive precedent” in a subsequent fees application in the same case, but not in the subsequent fees application by Mr. Masias). 4. Impact of Cloer II. Petitioner’s supplemental briefing concerning the impact of or guidance to be taken from Cloer II is contradictory and internally inconsistent.23 Initially, petitioner correctly notes that “good faith and reasonable basis do not apply in determining eligibility for fees” in a case where petitioner prevailed in the underlying Vaccine Act claim. Pet. Memo at 3-4. However, petitioner closes his supplemental memorandum by arguing that: 22 I note, however, that in a one paragraph order, petitioner’s appeal is twice termed “unsuccessful,” suggesting that petitioner’s lack of success played some role in the Federal Circuit’s denial of the fee motion. 23 In his memorandum, petitioner refers to the decision as Cloer. For consistency within this decision, I will modify petitioner’s references from “Cloer” to “Cloer II.” The issue in Cloer I involved the Vaccine Act’s statute of limitations. See Cloer v. Sec’y, HHS, 654 F.3d 1322 (Fed. Cir. 2011). 10 [t]he express, precedentially-binding analysis of the Cloer [II] court spells out exactly what is required to determine eligibility for fees – ‘a good faith and reasonable basis analysis’– and it is clear from the face of the Circuit’s two-sentence February 17 order, which says nothing about reasonableness or good faith, that it simply does not comprise such analysis. Pet. Memo at 7-8 (emphasis in original). Petitioner argues that because good faith and reasonable basis were not analyzed in the denial order it was not a decision on the merits.24 Id. at 7. The petitioner in Cloer was not compensated for the underlying vaccine injury claim. Thus, any award of fees and costs to Dr. Cloer would require an analysis of the good faith and reasonable basis of the underlying claim, with Cloer II making the lack of timely filing part of that good faith and reasonable basis analysis. In contrast, Mr. Rodriguez received compensation on his underlying claim, making him entitled to an award of reasonable fees and costs. The denial order’s lack of a good faith and reasonable basis analysis does not spare petitioner from an application of the law of the case doctrine, as under § 15(e) such analysis is not required when determining the reasonable attorneys’ fees to which a compensated petitioner is entitled. Petitioner also asserts that the failure of the Federal Circuit to remand his motion for fees to the CFC does not necessarily “signal that [the denial order] was determining the issue on the merits” because “[w]hile Cloer [II] shows a remand may be proper, nothing in Cloer [II] shows it is mandatory.” Pet. Memo at 6-7. Petitioner additionally notes that Cloer II was issued two months after the panel ruled on his fee motion, and opines that it cannot be assumed that the panel members in this case knew that remanding the fee motion was a proper action to take. Id. at 6. However, I note that the issue of remand was squarely before the panel in this case, as respondent had suggested remand was appropriate. Respondent interprets Cloer II as illustrating that “the propriety of a remand of a case by an appellate court to a lower court obviously depends on the facts and circumstances in the particular case.” Res. Memo at 2. The Federal Circuit’s Internal Operating Procedure No. 9 embodies respondent’s view of Cloer II, noting that “[t]he court will remand only when there is something more for the trial court or agency to do, and will supply such guidance as the case may warrant” (emphasis added). In Cloer II, the Federal Circuit opted to provide guidance on how to evaluate a fee petition in an untimely filed case and remanded the case to the Court of Federal Claims to determine the appropriate award of fees under the articulated legal framework. 25 In this case, the 24 Although petitioner devotes two pages of his memorandum to present an argument in the alternative regarding unsuccessful appeals (id. at 4-5), it does not appear that the closing section of the memorandum is intended to be an argument in the alternative. 25 On November 20, 2012, the Supreme Court granted the Secretary’s petition for certiorari in Cloer II on the issue of whether the Vaccine Act’s statute of limitations precludes the payment of attorneys’ fees and costs in untimely-filed cases. Cloer v. Sec’y, HHS, 675 F.3d 1358 (Fed. Cir. 2012), cert. granted, 2012 11 Federal Circuit elected to make a determination on the appropriate award of fees and decided that an award of fees was not appropriate. 5. Conclusion. Petitioner argues that application of the law of the case is discretionary and applying it here would lead to a “highly inequitable result.” Reply at 7. Petitioner does not cite to any case law to support this argument, but I will assume he is referring to the third “exceptional circumstance” articulated in Smith and other cases. This exception requires that application of the doctrine would “work a manifest injustice” and that the initial decision “was clearly erroneous.” Smith, 759 F.2d at 1576. I am without authority to find the Federal Circuit’s denial to be clearly erroneous, and thus need not reach the “manifest justice” argument. Under the law of the case doctrine I am bound by the decision reached by the Federal Circuit. Therefore, I deny petitioner’s application for the fees requested from and denied by the Federal Circuit. B. Fees for Appellate Work in Court of Federal Claims. The initial question presented in considering petitioner’s request for fees and costs for work before the Court of Federal Claims is whether the Federal Circuit’s summary denial of petitioner’s request for fees for fees prohibits me from making an award for work on the motion for review. I conclude that the “law of the case” doctrine is not directly implicated, and thus I have the discretion to award fees for this appeal. I exercise that discretion in favor of an award. However, I grant fees in an amount less than petitioner requests because I find that the hourly rate requested exceeds the forum rate and that some of the hours represent work for which petitioner’s counsel have already received payment. 1. Law of the Case. In her discussion of the applicability of law of the case to the instant fee application, respondent notes that the issues raised in the appeals to the Federal Circuit and Supreme Court were the same issues raised in the motion for review, and argues that the instant fee application should be denied in toto. Response at 9 n.5. The Federal Circuit’s summary denial of petitioner’s request, coupled with the use of the term “unsuccessful” twice in a one paragraph order, could be viewed as an indication that the Federal Circuit did not think this unsuccessful appeal warranted any additional fees for fees. Having gambled by asking the Circuit to rule on his fees (and thereby maybe obtaining a higher hourly rate than I awarded for the work before me), perhaps petitioner should be bound by the result. Respondent makes a reasonable argument WL 5851844 (U.S. Nov. 20, 2012) (No. 12-236). The issue before the Supreme Court does not appear to impact on the authority of the Federal Circuit to remand a fees and costs application, only on the scope of the remand. 12 that the instant fees application is governed by the Federal Circuit’s denial order. However, two factors militate against that view. The first is that petitioner is seeking an award for his work on a motion for review of a special master’s decision, not the decision of a judge appointed by the President and confirmed by the Senate. Although Congress charged the special masters with determining fees and costs awards as well as entitlement awards, the statute permits a petitioner to seek review of a decision denying or awarding compensation for fees and costs.26 An unsuccessful motion for review of a special master’s decision might be viewed in a different light than an unsuccessful appeal of a judge’s decision. The second and, in my view, dispositive factor is that the issue of “fees for fees” for petitioner’s motion for review before the Court of Federal Claims was not before the Federal Circuit. The shared jurisdiction over fees applications allows a petitioner to select a forum in which to file fees applications—or to select all three fora.27 I conclude that the Federal Circuit’s summary denial does not bar my consideration of petitioner’s request for fees for the appellate work done before the Court of Federal Claims. Although one might read the summary denial order as saying that a petitioner who has been unsuccessful twice in his arguments for a higher hourly rate has had two bites at the apple, and thus might warrant consideration of success as a factor in requests for “fees for fees,” it does not compel me to deny all fees for the motion for review. 2. Attorneys’ Fees and Costs as “Compensation.” a. Authority to Award Fees and Costs. Although the Vaccine Act’s attorneys’ fees provisions do not condition payment on success, the Act does differentiate between petitioners successful on the merits and those unsuccessful in obtaining compensation for their injuries. Section 15(e) of the Act states that when a petitioner is awarded compensation, “the special master 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 a 26 Section 12(a) of the Vaccine Act confers jurisdiction initially on the special masters to determine whether a petitioner is entitled to compensation. If a motion for review of the special master’s decision denying compensation is filed, a judge of the Court of Federal Claims may deny the motion, grant the motion and remand to the special master, or may enter a decision finding entitlement to compensation. See §§ 12(d)(3)(A); 12(e)(2). 27 A petitioner may file for fees before the special master, before a judge of the Court of Federal Claims, and before the Federal Circuit. For example, a petitioner may file his initial fees application with the special master. He may then file a motion for review of the special master’s decision, and seek fees for work on that motion before either the special master or the judge hearing the motion for review. Vaccine Rule 34(b). If an appeal is taken to the Federal Circuit, the fees associated with that appeal may be filed with the Federal Circuit, with the Court of Federal Claims, or with the special master. RFC 47.7; Court of Federal Claim Rule 54(d)(2); Vaccine Rule 13(b). 13 petitioner is not awarded compensation, he may be awarded an amount to cover “reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master 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.” Attorneys’ fees are classified as “part of such compensation” awarded to litigants who prevail in their Vaccine Act claims. § 15(e)(1). The same section of the Act also uses the term “compensation” in referring to the special master’s discretionary award of attorneys’ fees and costs to petitioners who do not receive compensation for a vaccine injury. b. Fees in Motions for Review of Entitlement Decisions. Fees and costs have been awarded for work performed on motions for review of entitlement decisions on the same basis as for the initial entitlement case. 28 Those who succeed in obtaining an award for a vaccine injury, whether before the special master, or after obtaining review of an adverse decision of the special master are entitled to an award of fees and costs. For those unsuccessful on a motion for review, an award of attorneys’ fees and costs is within the discretion of the special master or judge of the Court of Federal Claims before whom the application for such fees and costs is filed. § 15(e)(1). 3. Fees for Fees. When fees and costs are awarded by the special master in less than the amount requested, a motion for review may be filed with the Court of Federal Claims. Historically, “fees for fees” appeals have been treated in the same manner as fees for appeals of the underlying Vaccine Act claim.29 The success of the fee appeal has played no role in determining whether an award should be made, except when an appeal is deemed frivolous.30 If, however, fee appeals are analyzed in terms of the 28 Respondent may, of course, oppose an award of fees and costs and may also file a motion for review of a special master’s fees and costs decision. For purposes of this analysis, I limit my discussion to cases in which petitioner seeks fees for fees for his or her own appeal or motion for review. 29 In an unpublished decision in 1994, Judge Weinstein suggested that the phrase in §15(e)(1) “in any proceeding on a petition” did not encompass fees for appeals. Tieves v. Sec’y, HHS, No. 90-2935V, slip op. at 9 n.5 (Ct. Cl. Oct. 4, 1994). That view was not adopted by other judges or special masters. 30 In Morse, Judge Bush concluded that frivolous appeals are per se unreasonable and thus not reimbursable under the Vaccine Act. Morse v. Sec’y, HHS, 93 Fed. Cl. 780, 789 (2010) (citing Perreria, 33 F.3d at 1377 (“counsel’s duty to zealously represent their client does not relieve them of their duty to the court to avoid frivolous litigation) and Jordan v. Sec’y, HHS, 38 Fed. Cl. 148, 154 (1993) (noting that because petitioners’ arguments on appeal did not challenge the critical finding of the special master their arguments were irrelevant and frivolous and petitioners were not entitled to an award of attorneys’ fees or costs)). The Federal Circuit has identified two types of frivolous appeals. See, e.g., Abbs v. Principi, 237 F.3d 1342, 1345 (Fed. Cir. 2001). Appeals are deemed “frivolous as filed” when the appeal is based on arguments “that are beyond the reasonable contemplation of fair-minded people and no basis for reversal in law or fact can be or is even arguably shown.” Id. (quoting State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1578 (Fed. Cir. 1991)). “Frivolous as Argued” appeals are those where the “appellant has not dealt fairly with the court, has significantly misrepresented the law or facts, or has abused the judicial 14 policy behind the Vaccine Act’s generous fee-shifting provisions—to ensure access to competent representation for those injured by vaccines—then perhaps the consideration of fees for fees appeals should differ from that of fees for appeals of entitlement decisions. Should an attorney who settles a case for nuisance value be paid for two or three appeals of a decision that awarded him less than the hourly rate he requested in his initial fee application? It seems unlikely that this is what Congress intended in its extraordinarily generous grant of fees and costs to litigants who do not prevail on the merits.31 The current appeals payment structure turns what is a fee-shifting provision designed to encourage attorneys to represent Vaccine Act petitioners into one where there is no disincentive to devoting $100,000.00 or more of attorney time for an unsuccessful appeal of a decision that cut a few hundred dollars from the fee bill submitted. No rational attorney would risk $100,000.00 of her time to recover an additional $1,000.00—except in the Vaccine program. In Masias, Judge Hodges held that the Vaccine Act does not explicitly exclude payment of fees for fees for unsuccessful appeals. Masias, 106 Fed. Cl. at 703-04. However, he also indicated that “if limitations to fee awards would have beneficial effects for the Vaccine Program, such as discouraging costly appeals with little likelihood of success” then Congress or the appellate courts should consider them.32 Id. at 704. By implication, Judge Hodges thus decided that success on an appeal should not be the sole determinant as to whether a petitioner can receive an award of fees for fees. “If a petitioner’s success on appeal was zero, his award for fees is not necessarily zero; the standard to apply is whether the fees were reasonable.” Id. The standard articulated by Judge Hodges in Masias does not address whether the appeal itself was reasonable. Respondent contends that the standard should be whether fees were reasonably incurred. She argues that the wholly unsuccessful nature of the appeals in this case establishes that the fees were not reasonably incurred, and thus petitioner should not receive any fees for fees. See Response at 9; Res. Memo at 3. Petitioner concedes that a Vaccine Program case could have a fee process by repeatedly litigating the same issue in the same court.” Abbs, 237 F.3d at 1345 (quoting Sparks v. Eastman Kodak Co., 230 F.3d 1344, 1345 (Fed. Cir. 2000)). An appeal is not deemed frivolous simply because there is a small chance of success. Morse, 93 Fed. Cl. at 789 (citing Finch v. Hughes, 926 F.2d 1574, 1578 (Fed. Cir. 1991)). 31 Nor did Congress intend to authorize payment for ill-advised appeals of entitlement decisions; an issue addressed in several early opinions in the Vaccine Program. See e.g., Phillips v. Sec’y, HHS, 988 F.2d 111, 113 (Fed. Cir. 1993)(J. Plager, concurring)(quoting Johnson v. Sec’y, HHS, No. 90-645V, 1992 WL 247565 at *2 (Cl. Ct. Spec. Mstr. Sept. 14, 1992) (“[C]ounsel who choose to pursue basically hopeless appeals of Program decisions, especially those turning on credibility determinations, should not be surprised to find that the Program will not compensate their time spent upon such appeals.”)). 32 For example, the use of a “degree of success test” like that applied in Wagner v. Shinseki, 640 F.3d 1255 (Fed. Cir. 2011) and relied upon by the special master in Masias might be used to evaluate fees for fees awards. 15 litigation which is “not merely unsuccessful, but is so wildly unreasonable in its inception, so predictably an unjustifiable waste of time and effort for all concerned,” that fees for the litigation should be denied in their entirety. Reply at 9. Petitioner obviously does not believe that his case fits into that description. The Vaccine Act uses the term “reasonable attorneys’ fees,” but does not define what they are. In fees for fees cases, does “reasonable” apply only to the hourly rate and the number of hours, or does it encompass the broader question of whether the fees requested were reasonably incurred? Respondent notes that “reasonable” has been defined as “[f]air, proper, just, moderate, suitable under the circumstances,” suggesting that “reasonable” does encompass some degree of business judgment about the merits of the request for review. Response at 13 citing Turner v. Sec’y, HHS, No. 99-544V, 2007 WL 4410030, *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Supreme Court has indicated that hours which are “excessive, redundant, or otherwise unnecessary” are not reasonably expended, and that “[h]ours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). In Hensley, the Supreme Court also addressed “other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’” Id. The Court noted that in cases where partial or limited success was achieved it may be excessive to award fees in an amount calculated by multiplying the hours reasonably expended by the reasonable hourly rate. Id. at 436. Even if the claims were brought in good faith, interrelated, and deemed non- frivolous a reduction in fees is likely appropriate. Id; see also Anthony v. Sullivan, 982 F.2d 586, 590 (D.C. Cir. 1993) (holding that because Hensley “requires the district court to consider the relationship between the amount of the fees awarded and the results obtained, fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation”) (emphasis original). Respondent argues that the appeal undertaken in this case did not advance the purpose of the Act, as petitioner had already been awarded compensation, and if successful the appeal would have only benefited petitioner’s counsel, not petitioner himself. See Response at 13-14. Because a petitioner would not individually pay an attorney for incurring fees for the appeal, respondent contends that neither should the Vaccine Trust fund. Id. at 14. Petitioner counters that although Mr. Rodriguez may not have benefited from his attorney receiving a higher hourly rate, future petitioners would have been helped by the availability of higher rates, resulting in attracting better- qualified and more capable counsel to the Program. Reply at 9. 4. Conclusion. To date, it does not appear that the reasonableness of a fees for fees application has been dependent on the success of the underlying motion for review of that fees decision. Petitioners have been awarded fees for fees in many cases where the motion 16 for review of the special master’s fees and costs award was entirely unsuccessful. Masias is only the latest example. Notwithstanding the merit in some of respondent’s arguments, it is not necessary to decide the issue of whether “reasonable attorneys’ fees” encompasses an assessment of the merits of a non-frivolous appeal in a fees for fees award. Even if I applied the analyses respondent urges for the language “reasonable attorney’s fees . . . incurred in any proceeding on such petition” (§ 15(e)), I would find, under the circumstances present in this case, that petitioner’s motion for review was reasonable. When petitioner applied for fees and costs for the work on his entitlement case, I denied his request for Laffey Matrix rates for Mr. McHugh and Mr. Gaynor. Shortly after my fees and costs decision was issued, one of my colleagues awarded Laffey Matrix rates to Mr. McHugh.33 In light of this conflict, Mr. Rodriguez’s motion for review of my fees and costs decision was a reasonable, non-frivolous means to resolve the issue of the applicability of those rates to the Program.34 Petitioner is therefore entitled to some award of fees associated with the motion for review. I discuss the amount of fees requested and awarded in Section III. C. Litigation Expenses. The Federal Circuit’s order denied petitioner’s “motion for an award of attorney’s fees,” and did not specifically address petitioner’s request for costs. However, as RFC 47.7 permits awards for both fees and costs, if the Federal Circuit wished to have granted petitioner’s request for costs it could have done so. Instead, it denied petitioner’s entire motion. Based on the doctrine of law of the case, I find that petitioner is entitled only to the litigation expenses associated with the motion for review in the Court of Federal Claims. III. Determining the Amount of Fees and Costs to be Awarded. The Vaccine Act authorizes “reasonable attorneys’ fees and other costs.” § 15(e)(1). The Court of Federal Claims has recognized that it is within the discretion of the special master to determine the reasonableness of a request for attorneys’ fees. Rodriguez, 91 Fed. Cl. at 462. The special master may reduce a fee request sua sponte. Sabella v. Sec’y, HHS, 86 Fed. Cl. 201, 208-09, 221 (2009); Carrington ex rel. Carrington v. Sec’y, HHS, 85 Fed. Cl. 319, 322 (2008). 33 See Walmsley v. Sec’y, HHS, No. 06-270, 2009 WL 4064105 (Fed. Cl. Spec. Mstr. Nov. 6, 2009). Respondent did not file a motion for review of this decision, perhaps because one was pending with regard to my denial of Laffey Matrix rates in the instant case. 34 Given the Federal Circuit decision in this case and in Masias v. Sec’y, HHS, (634 F.3d 1283) and Hall v. Sec’y, HHS, (640 F.3d 1351), future appeals based on a denial of Laffey Matrix rates would not be similarly viewed. 17 I apply the lodestar method, in which a reasonable hourly rate is multiplied by the reasonable number of hours, to determine the amount of attorneys’ fees to be awarded. Avera v. Sec’y, HHS, 515 F.3d 1343, 1347-48 (Fed. Cir. 2008). Respondent did not interpose specific objections to the fees and costs requested for the work performed on the motion for review before Judge Sweeney. Instead, she generally classified the number of hours spent as being “excessive and unreasonable.” Response at 22. Respondent noted that given the similarities between the work done in conjunction with the Motion for Review and the briefings filed before me, the number of hours requested by petitioner should be significantly reduced. Id. at 22-23. Additionally, respondent urges me to consider the disproportionality between the fees awarded for the entitlement phase of the case with the fees for fees now being requested by petitioner.35 Response at 16-17. A. Work performed by Gilbert Gaynor. Petitioner seeks payment for 75.6 non-travel hours and 18.7 travel hours for work done by Mr. Gaynor in connection with the motion for review before the Court of Federal Claims. Fee App. at 9; Exhibit B to Gaynor’s First Declaration. In his supplemental memo, petitioner requests payment for an additional 7.9 hours for work performed in 2012. Pet. Memo at 8; Gaynor’s Second Declaration. Mr. Gaynor requests an hourly rate of $340 for his non-travel hours and $170 for travel hours. Fee App. at 11. 1. Hourly Rate. The rate Mr. Gaynor requests in his fee application ($340)36 is higher than the rate I awarded in my initial fee decision in this case. Rodriguez, 2009 WL 2568468 at *24 (awarding payment at an hourly rate of $275 for hours worked in 2009). Petitioner argues that the higher rate is justified because appellate work before the Federal Circuit and the Supreme Court is not “fungible” with the legal work required for Vaccine Act cases in the Office of Special Masters [“OSM”]. Reply at 14. He asserts that appellate work, involving arguments before judicial panels and the filing of certiorari petitions, among other tasks, requires different qualifications than most trial attorneys possess. Id. Petitioner therefore concludes that the hourly rate previously established for Mr. Gaynor’s work in the OSM should not apply to the “more complex” appellate work he has billed for in this case. Id. Because I am not awarding any fees for the appellate work performed before the Federal Circuit or the Supreme Court, I do not need to address petitioner’s argument in great detail. However, I will note that virtually all appeals of special master decisions in the Vaccine Program, including many appeals to the Federal Circuit, are handled by the 35 This later argument encompasses the total fees requested, including those denied by the Federal Circuit. 36 Petitioner sought an even higher rate of $475 before the Federal Circuit. Fed. Cir. Fee Motion at 15, filed as Res. Ex. I. 18 same attorney who litigated the case before the special master, and that attorneys are typically paid the same hourly rate for the time spent advocating for their client before the special master, Court of Federal Claims, and Federal Circuit. Respondent opposes any increase in Mr. Gaynor’s hourly rate from the $275 established in my initial fee decision and upheld at all levels of appellate review. Response at 20-22. However, respondent concedes that an adjustment for inflation would be appropriate. Id. at 22. I find it reasonable to compensate the time billed by Mr. Gaynor in connection with the motion for review and the instant fee application at an hourly rate of $280 for 2010, $288 for 2011, and $295 for 2012, which represent the $275 hourly rate awarded in my 2009 fee decision adjusted for inflation. See Bureau of Labor Statistics, CPI Inflation Calculator, available at http://www.bls.gov/data/inflation_calculator.htm (last accessed Feb. 28, 2013). 2. Hours Billed. To determine a reasonable number of hours, “[a] special master is permitted and even expected to examine a law firm's time sheets and root out ‘hours that are excessive, redundant, or otherwise unnecessary.’” Davis v. Sec’y, HHS, 105 Fed. Cl. 627, 638 (2012) (quoting Hensley, 461 U.S. at 434); see also Carrington, 83 Fed. Cl. at 323 (noting that excessive hours should be excluded from an award). However, special masters are not required to perform a line-by-line analysis of the billing records. Broekelschen v. Sec’y, HHS, 102 Fed. Cl. 719, 729 (2011). a. Non-travel Hours. Of the 75.6 non-travel hours billed by Mr. Gaynor for work before the Court of Federal Claims, 58.0 hours were billed for preparing the motion for review. These hours include such tasks as research and outlining (17.1 hours), drafting the motion (29.7 hours), and editing and cite-checking the motion (10.4 hours). See Billing Records, filed as Exhibit B to Gaynor’s First Declaration. Given the similarities between the issues raised in the motion with the issues briefed before me regarding the initial fees application, respondent contends that the number of hours billed by Mr. Gaynor are “excessive and unreasonable” and requests that I compensate petitioner for a significantly reduced number of hours. Response at 23-24. Petitioner argues that the issues on appeal in the motion are necessarily similar to those raised before me because of the need to preserve arguments. Reply at 13. Additionally, petitioner notes the way one frames legal issues differs between trial and appellate courts, and that parties refine and focus their arguments as the case progresses. Id. at 18. I have reviewed the briefs filed in support of petitioner’s initial fee application and the motion for review. Although sections of the motion for review are original, portions 19 of the motion are cut and pasted from the briefing filed during my consideration of petitioner’s initial fee application37 or do not contain significant legal reasoning.38 Based on my review of the filings, I award a total of 50 hours for time spent on the research, writing, and editing of the motion. The remainder of the non-travel hours Mr. Gaynor billed (17.6 hours) can be classified as follows: 4.0 hours for initial review of the fee decision, 1.3 hours for preparation of the judicial notice filed on January 5, 2010, 8.9 hours to prepare for oral argument, 1.8 hours for the argument, and 1.6 hours to review Judge Sweeney’s decision and decide how to proceed. As the author of the motion for review, spending almost nine hours to prepare for the oral arguments seems a bit excessive. 39 However, there was a four month gap between the filing of the motion and the oral arguments, so spending some time to review the briefs and relevant case law is understandable. I will award 15 hours for these activities, which combined with the hours awarded for work on the motion itself, totals 65 non-travel hours. b. Travel Hours. Petitioner requests payment for the time spent traveling to Washington, DC for the oral argument at half of his hourly rate. I find petitioner’s request to be reasonable, and will award payment for the 18.7 hours requested. See Carter v. Sec'y, HHS, No. 04–1500V, 2007 U.S. Claims LEXIS 249 (Fed. Cl. Spec. Mstr. July 13, 2007); Scoutto v. Sec'y, HHS, No. 90–3576V, 1997 U.S. Claims LEXIS 195, (Fed. Cl. Spec. Mstr. Sep. 5, 1997). c. Additional Hours from 2012. Petitioner requests payment for 7.9 hours worked since the instant fee application was briefed. These additional hours cover Mr. Gaynor’s participation in a status conference I held to discuss the fee application, his analysis of Cloer II, and drafting petitioner’s supplemental memorandum. See Supplemental Billing Records, filed as Exhibit A to Gaynor’s Second Declaration. Respondent opposes payment of these additional hours. Res. Memo at 4. I find that billing some additional time for these tasks is reasonable. Of the 7.9 hours, 5.5 hours were spent on petitioner’s supplemental memorandum regarding Cloer II. The memo does not cite to any new case law, and 37 For example, pages 18-23 of the Motion for Review are nearly identical to pages 3-7 of Petitioner’s September 12, 2008 memorandum in response to my July 17, 2008 order. 38 For example, pages 4-10 contain the statement of the case and pages 31-32 and 35-36 contain biographies of Mr. Gaynor and Mr. McHugh. 39 A portion of the oral argument preparations (1.5 hours) was incurred for a moot court held on January 14, 2010, at George Washington University’s School of Law in front of students participating in the Vaccine Injury Clinic run by Professor Peter Myers. Exhibit B to Gaynor’s First Declaration at 2. 20 contains inconsistent and incorrect legal arguments. See supra section II.A.4. Of the remaining 2.4 hours, 0.6 hours were incurred for communications40 between my chambers, respondent’s counsel, and Mr. McHugh related to the scheduling of the status conference I held. I award a total of 6 hours for the additional hours billed in 2012. B. Work performed by John McHugh. Petitioner seeks payment for 30.0 hours of work done by John McHugh. Fee App. at 10; Exhibit 2 to McHugh Declaration. Like Mr. Gaynor, Mr. McHugh requests an hourly rate of $340 for his non-travel hours.41 Fee App. at 11. None of the hours for which Mr. McHugh seeks payment were incurred in connection with the motion for review before the Court of Federal Claims. All of the hours are associated with appellate work before the Federal Circuit and Supreme Court. See Exhibit 2 to McHugh Declaration (Billing Records for work completed between January 26, 2010 and November 4, 2011).42 Accordingly, I award none of the fees requested by Mr. McHugh. C. Litigation Expenses. In addition to reasonable attorneys’ fees, petitioners in the Vaccine Program may be awarded reasonable litigation costs. § 15(e)(1). General Order #943 requires a statement be attached to petitioner’s request for fees that delineates which litigation expenses were personally incurred by petitioner versus those sustained by petitioner’s counsel. Petitioner did not include a statement pursuant to General Order #9 with his fee application, but one was filed with his reply brief. The statement indicates that petitioner incurred no personal litigation expenses, and that all of the expenses sought in the fee application were incurred by petitioner’s counsel. The information concerning expenses that petitioner submitted with his fee application is identical to the documentation attached to his Fed. Cir. Fee Motion. Compare Exhibit C to Gaynor’s Fed. Cir. Fee Motion Declaration, filed as Res. Ex. I at 40 I note that the five emails exchanged contained a combined total of approximately 190 words. 41 Before the Federal Circuit, Mr. McHugh sought an hourly rate of $450. Fed. Cir. Fee Motion at 18, filed as Res. Ex. I. 42 The billing records submitted are identical to those filed with Fed. Cir. Fee Motion, including the mistyped case number (1010-5093 instead of 2010-5093) in the electronic Bates Stamp. Compare Exhibit 2 to McHugh Declaration with Exhibit 2 to McHugh’s Fed. Cir. Fee Motion Declaration, filed as Res. Ex. I at 58-61. 43 General Order #9 is available on the court’s website, http://www.uscfc.uscourts.gov/sites/ default/files/General9.pdf. 21 44-48, and Exhibits 3-15 to McHugh’s Fed. Cir. Fee Motion Declaration, filed as Res. Ex. I at 62-75, with Exhibit C to Gaynor’s First Declaration and Exhibits 3-15 to McHugh’s Declaration. Petitioner requests reimbursement only for Mr. Gaynor’s travel to the oral argument before the Federal Circuit, a request barred by law of the case doctrine. See Exhibit C to Gaynor’s First Declaration (receipt for travel on Dec. 2, 2010). Petitioner did not include a request for reimbursement for any travel expenses associated with the motion for review. Accordingly, I award no costs. IV. Conclusion. I hold petitioner is entitled to reasonable attorneys’ fees and costs pursuant to §§ 15(b) and (e)(1) incurred in conjunction with his motion for review before the Court of Federal Claims. Pursuant to § 15(e), I award $22,315.50,44 which shall be paid in the form of a check payable jointly to petitioner and petitioner’s counsel.45 The clerk of the court shall enter judgment in accordance herewith.46 IT IS SO ORDERED. /s Denise K. Vowell Denise K. Vowell Special Master 44 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir.1991). 45 I note that this amount is consistent with amounts awarded for other petitions for review of fees decisions. See Broekelschen v. Sec’y, HHS, No. 07-137V, 2012 WL 1203361 at *1 (awarding $24,183.50 for a motion for review) and at Appendix 2 (documenting that recent awards of fees and costs for motions for review have ranged from $6,600 to $39,715). 46 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing the right to seek review. 22