Noblett v. Secretary of Health and Human Services
14-969
| Fed. Cl. | Jul 17, 2017Background
- Petitioner Roger Noblett filed a Vaccine Program petition alleging Guillain-Barré Syndrome from an influenza vaccine given October 16, 2013; entitlement was awarded by joint stipulation on October 19, 2016.
- Petitioner moved for attorneys’ fees and costs on April 11, 2017 seeking $38,647.20 in fees and $3,367.10 in costs (including $111.96 claimed personally).
- Respondent did not oppose an award of fees and costs but left the reasonableness and amount to the Special Master’s discretion.
- Special Master applied the lodestar method, using forum rates (D.C.) per Avera and McCulloch guidance, compared to local rates per Davis County when appropriate.
- The Special Master reduced requested hourly rates for lead counsel Amber Wilson (different rates for 2014–15, 2016, and 2017) and for Cecelia Stultz (2017), reduced some travel billing by applying a lower travel rate, but awarded requested litigation costs for record retrieval, travel, postage, and filing.
- Final awards: $31,948.50 in adjusted MCT attorneys’ fees, $3,255.14 in MCT attorneys’ costs (total $35,203.64) payable jointly to Petitioner and MCT; $3,881.64 to former counsel Streett Law Firm; and $111.96 to Petitioner.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Appropriate hourly rates for attorneys | Requested forum rates for counsel: Amber Wilson ($295–$308 across years); Cecelia Stultz $250 (2017) | No specific objections to entitlement; reserved to Special Master to set reasonable rate | Reduced Wilson’s rates to $225 (2014–15), $275 (2016), $290 (2017); reduced Stultz to $230 (2017) |
| Billing for travel time | Full hourly rate requested for travel entries | No objection offered; Special Master to apply precedent | Full rate allowed only when work is shown; otherwise travel paid at reduced rate. Here travel billed at two-thirds of attorney’s rate ($150) for certain entries, producing a reduction |
| Reimbursement of litigation costs | Requested $3,255.14 for record retrieval, travel, postage, filing | No objection to costs’ reasonableness | Costs found reasonable and awarded in full ($3,255.14) |
| Form and allocation of award | Requested fees/costs paid to counsel and petitioner | Respondent deferred to Special Master for distribution | Award entered: specified checks payable jointly to Petitioner and counsel (MCT and Streett) and a separate payment to Petitioner; special master directed clerk to enter judgment |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (endorsing lodestar approach and forum-rate presumption in Vaccine Program cases)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar methodology for reasonable attorney fees)
- Davis County Solid Waste Management & Energy Recovery Special Service District v. United States, 169 F.3d 755 (Fed. Cir. 1999) (exception to forum rates where work performed outside forum and local rates are significantly lower)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (Fed. Cir. 1993) (special masters afforded wide discretion in awarding fees)
- Gruber v. Secretary of Health & Human Services, 91 Fed. Cl. 773 (Fed. Cl. 2010) (permitting full travel-rate fees only when attorney documents work performed while traveling)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (Fed. Cl. 1992) (costs awarded must be reasonable)