Cooley v. Secretary of Health and Human Services
17-1556
| Fed. Cl. | Sep 20, 2021Background:
- Petitioner Robin Cooley filed a Vaccine Act petition alleging a shoulder injury after a December 13, 2016 influenza vaccination; the parties filed a stipulation of compensation adopted April 7, 2021.
- After the entitlement decision, Cooley sought final attorneys’ fees and costs totaling $52,724.13 ($52,017.70 in fees, $706.43 in costs); she also reported $500 in client-incurred costs per General Order No. 9.
- Respondent stated statutory requirements for an award were met and deferred to the Special Master to determine a reasonable amount.
- The Special Master applied the lodestar framework (hours × reasonable hourly rate) and considered Vaccine Program precedent and the OSM Fee Schedule in evaluating rates and hours.
- The Special Master reduced fees for: (a) attorney hourly rates for 2017–2019 to previously awarded levels, (b) paralegal rates where they exceeded OSM schedule, and (c) a 5% overall reduction for vague billing entries and attorney-level billing of paralegal/clerical tasks.
- The Special Master awarded a combined attorneys’ fees and costs payment of $49,548.68 (joint check to Cooley and counsel) and an additional $500.00 to Cooley for her retainer payment; final judgment to be entered absent review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate hourly rate for counsel across years | Cooley sought $410/hr for Mari Bush for 2017–2021 | Respondent did not contest reasonableness and deferred to Special Master | Awarded $410/hr for 2020–2021; reduced 2017–2019 hours to previously awarded $400/hr, yielding a $614 reduction |
| Paralegal hourly rates | Cooley sought $150/hr for paralegal work | Respondent did not contest; Special Master evaluates against OSM Fee Schedule | Reduced to previously awarded paralegal rates (resulting in $64.50 reduction) because $150 exceeded OSM maximum for 2017 |
| Reduction for vague/clerical or paralegal tasks billed at attorney rates | Cooley maintained billed hours as submitted | Respondent did not oppose but left amount to Special Master | Special Master applied a 5% overall reduction to attorney fees for vague entries and attorney-level billing of paralegal/clerical tasks; resulting final attorneys’ fees $48,842.25 |
| Reimbursement of non-attorney costs (medical records, filing, postage, retainer) | Cooley sought $706.43 in litigation costs plus $500 retainer reimbursement | Respondent did not contest reasonableness | All requested costs reimbursed in full: $706.43 (as part of joint payment) and $500.00 to petitioner |
Key Cases Cited
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (endorsing lodestar approach for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (1984) (defining reasonable attorney fee as prevailing community rate for comparable lawyers)
- Rodriguez v. Secretary of Health & Human Servs., 632 F.3d 1381 (Fed. Cir. 2011) (forum rates generally apply; Davis County exception narrow)
- Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755 (D.C. Cir. 1999) (basis for limited local-rate exception)
- Avgoustis v. Shinseki, 639 F.3d 1340 (Fed. Cir. 2011) (billing entries for communications should identify subject matter)
- Saxton ex rel. Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters may reduce hours that are excessive/redundant)
- Broekelschen v. Secretary of Health & Human Servs., 102 Fed. Cl. 719 (2011) (no requirement for line-by-line accounting by special masters)