Dier v. Secretary of Health and Human Services
15-571
| Fed. Cl. | Mar 16, 2017Background
- Petitioner Hilton H. Dier filed a Vaccine Program petition alleging a SIRVA from a Dec. 4, 2012 influenza vaccination; the parties later settled damages for $50,000.
- After settlement, Petitioner moved for final attorney’s fees and costs seeking $14,263.98 (fees $14,153.00; costs $110.98) plus $400 in litigation-related expenses paid personally by Petitioner.
- Counsel (Paul S. Dannenberg) requested forum (D.C.) hourly rates of $265–$275; Special Master previously determined Dannenberg is not entitled to forum rates because his practice is in Vermont.
- Respondent did not contest entitlement to an award and deferred to the Special Master to determine a reasonable amount.
- The Special Master evaluated appropriate hourly rates (using prior Glaser determination), reduced one time entry (5.5 hours to 2.75 hours), and reviewed requested costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper hourly rate for counsel | Dannenberg seeks forum rates ($265–$275) based on experience and local affidavits | Respondent did not contest; asked Special Master to exercise discretion | Special Master denied forum rates; awarded Vermont (local) rates: $237/hr for 2014–2015 and $238/hr for 2016–present |
| Whether prior rates determination should be revisited | Petitioner offered affidavits and cited Schueman decision supporting higher rates | No substantive opposition; Respondent left rate decision to Special Master | Prior Glaser analysis stands; no new basis to increase rates, so prior local-rate findings applied |
| Reasonableness of hours billed | Requested 51.6 hours total; Petitioner sought full compensation for all billed time | Respondent raised no specific objections to hours | Special Master found hours largely reasonable but reduced one billing entry from 5.5 to 2.75 hours; awarded 48.85 hours total |
| Award of costs and petitioner-paid expenses | Requested $110.98 in counsel costs and $400 in expenses paid by Petitioner | Respondent raised no objections to costs | Costs of $110.98 awarded to counsel; $400 awarded separately to Petitioner |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (establishes the forum rule for determining reasonable attorney hourly rates)