Bales v. Secretary of Health and Human Services
15-882
| Fed. Cl. | May 23, 2017Background
- Petitioner Jaclyn Bales filed a Vaccine Program petition on behalf of her minor child, J.B.A., alleging DTaP vaccination (Aug 22, 2012) caused seizures, developmental delay, and encephalopathy.
- Petitioner sought expert support; initial expert declined to endorse causation due to the child’s SCN1A mutation; multiple scheduling extensions were granted while counsel sought a new expert.
- After further delay, counsel filed a motion to withdraw and petitioner indicated she would seek new counsel or proceed pro se; the Special Master issued an Order to Show Cause when no expert report or status was filed.
- Counsel moved to withdraw (Apr 6, 2017) and simultaneously filed for an interim award of attorneys’ fees and costs totaling $36,678.95.
- Respondent deferred to the Special Master on whether the Avera standard for interim fees was met but otherwise did not oppose an interim award and recommended the Special Master determine a reasonable amount.
- The Special Master found interim fees appropriate given good faith and reasonable basis, approved requested hourly rates, hours, and costs in full, and awarded $36,678.95 jointly payable to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs are permissible under the Vaccine Act | Bales sought interim fees and costs incurred to date, arguing ongoing delays and counsel’s withdrawal justify interim relief | Respondent deferred to the Special Master on whether Avera’s standard was satisfied but did not contest fees reasonableness if interim relief awarded | Interim fees and costs awarded: Special Master found Avera standard met (good faith and reasonable basis) and granted $36,678.95 |
| Whether hourly rates requested are reasonable | Counsel requested established rates including a 2017 increase to $375 for Mr. Downing and $135 for paralegal Avery, asserting prior rates hadn’t increased in 4 years | Respondent did not object to the proposed rates and deferred to Special Master’s rate-setting discretion | Rates approved as within McCulloch ranges; $375 for Downing and $135 for Avery for 2017 were reasonable |
| Whether time expended is reasonable | Petitioner requested compensation for 156.2 hours across attorneys and staff, documenting billing entries | Respondent raised no objection to total hours | Hours reviewed and found reasonable; full payment ordered |
| Whether requested litigation costs are reasonable | Petitioner sought $11,913.45 for filing, expert reviews, medical records, copying, postage, etc. | Respondent did not object to the reasonableness of costs | Costs found reasonable and awarded in full |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (permits interim fee awards under Vaccine Act and endorses lodestar approach)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (Fed. Cir. 2010) (interim fees appropriate where litigation cost imposes undue hardship and claim has good faith basis)
- Cloer v. Secretary of Health & Human Services, 675 F.3d 1358 (Fed. Cir. 2012) (denial of interim fees runs counter to Vaccine Act purposes)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (1992) (special masters have wide discretion in fee reasonableness determinations)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special masters may rely on experience in reviewing fee applications)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (describes lodestar method for calculating reasonable attorneys’ fees)