Gray v. Secretary of Health and Human Services
15-1542
| Fed. Cl. | Jul 10, 2017Background
- Petitioner Elizabeth Ann Gray received compensation under the National Childhood Vaccine Injury Act after a stipulated resolution; she then moved for attorneys’ fees and costs.
- Counsel Russell W. Lewis (Nashville) sought $22,097.68 ($20,185.00 in fees; $1,912.68 in costs). Petitioner personally incurred no costs.
- Respondent did not contest entitlement to fees/costs and asked the special master to exercise discretion on amount.
- The special master applied the lodestar method (reasonable hours × reasonable hourly rates) and the Avera/Davis County framework for forum vs. local rates.
- The special master reduced Lewis’s requested hourly rate and deducted 25% of his billed hours for vagueness, clerical tasks, and excessive attorney-level billing; paralegal and law clerk hours/rates were mostly accepted.
- The special master awarded $11,528.50 in attorneys’ fees and $1,912.68 in costs, for a total award of $13,441.18, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs | Petitioner is entitled because she received compensation under the Vaccine Act | Respondent agreed statutory requirements were satisfied | Entitlement conceded; fees and costs awarded as a matter of right under 42 U.S.C. § 300aa-15(e) |
| Appropriate hourly rate for lead counsel | Requested $350/hr for Lewis (2005 admission); affidavits supporting that rate | Respondent deferred to special master discretion; special master must compare local vs. forum rates under Avera/Davis County | Applied local-rate analysis; set Lewis’s reasonable rate at $260/hr (2015–2017); paralegal $105/hr; law clerk $65/hr |
| Reasonable number of hours billed | Submitted time entries totaling 55.5 hours for Lewis and smaller paralegal/law clerk time | Respondent did not challenge hours but left reasonableness to the special master | Reduced Lewis’s billed hours by 25% for vague entries, clerical tasks, and excessive attorney-level billing; left paralegal/law clerk hours unchanged |
| Recoverable costs (including expert consulting) | Requested $1,912.68 for records, filing, and an $850 expert consult | Respondent did not contest reasonableness of costs | All costs awarded in full ($1,912.68), including expert consultation fee |
Key Cases Cited
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach and forum vs. local-rate analysis under Davis County exception)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar formula: hours × reasonable rate)
- Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755 (D.C. Cir. 1999) (forum-rate exception analysis)
- Avgoustis v. Shinseki, 639 F.3d 1340 (Fed. Cir. 2011) (requirement that billing entries adequately identify purpose; privilege considerations)
- Saxton v. Secretary of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (fees should not be excessive, redundant, or unnecessary)
- Rodriguez v. Secretary of Health & Human Servs., 632 F.3d 1381 (Fed. Cir. 2011) (Vaccine Program work may warrant lower rates than other litigation)
- Guerrero v. Secretary of Health & Human Servs., 124 Fed. Cl. 153 (Fed. Cl. 2015) (attorneys should not bill for clerical/filing tasks)