Broekelschen v. Secretary of Health & Human Services
102 Fed. Cl. 719
| Fed. Cl. | 2011Background
- Petitioner Dr. Peter Broekelschen filed a final application for attorney’s fees and costs under the Vaccine Act after his entitlement petition was denied.
- Special Master Moran previously issued an interim award of partial fees and costs, reducing hours and adjusting expert rates.
- Court reviewed the interim award previously; petitioner appealed to the Federal Circuit, which affirmed the Master’s approach and the reasonableness of the award.
- Petitioner then sought a final fee award for work done after the interim decision, including appellate proceedings before the Federal Circuit and any rehearing requests.
- Special Master applied the lodestar method, set hourly rates, and divided the fee request into five periods of litigation for analysis.
- Court denied petitioner’s motion for review and affirmed the Special Master’s final fee award of $124,711.51 in fees and costs, in addition to the interim award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Special Master properly reduced hours in the motion for review | Broekelschen argues reduction was improper | Moran acted within discretion, citing lack of “fresh work” and proportionality | Abuse of discretion not shown; reductions reasonable |
| Whether the Special Master properly reduced hours for appellate work | Hours for appellate work were excessive | Reduction aligned with rational appraisal of work product | Abuse of discretion not shown; reductions upheld |
| Whether the Special Master properly reduced hours for rehearing en banc | Rehearing work demanded substantial time | Record showed duplicative/redundant research; reduction warranted | Abuse of discretion not shown; reductions justified |
| Whether travel costs were appropriately excluded | First travel day expenses were reasonable and necessary | Costs for travel day before argument not reasonably expended | Reasonable to exclude first-day travel costs; not compensable |
| Whether the use of awards in other cases to gauge reasonableness was proper | Comparing to other cases with different rates is improper | Use of comparable cases aids reasonableness under lodestar | Use of comparisons proper; did not violate lodestar method |
Key Cases Cited
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed.Cir.1993) (fee awards and discretion; line-by-line analysis not required)
- Perdue v. Kenny A. ex rel. Winn, — U.S. —, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (Supreme Court on excessiveness in fee awards)
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed.Cir.2008) (lodestar method and reasonableness of fees)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (reasonableness in fee-shifting; base principles for fees)
- Rodriguez v. Sec’y of Health & Human Servs., 91 Fed.Cl. 453 (2010) (reasonableness review of fee determinations)
- Doe/11 ex rel. Doe/11 v. Sec’y of Health & Human Servs., 89 Fed.Cl. 661 (2009) (comprehensive fee award context for motions for review)