Ochoa v. Secretary of Health and Human Services
16-627
| Fed. Cl. | Dec 13, 2017Background
- Petitioner Lauren Ochoa filed a Vaccine Program petition on behalf of her deceased daughter, Scarlett, alleging Table injuries (including anaphylaxis and acute encephalopathy) after vaccines given June 5, 2015; Scarlett died June 9, 2015.
- Respondent conceded the claim was compensable and the special master issued a ruling on entitlement and adopted the parties’ proffer resolving damages.
- Petitioner moved for final attorneys’ fees and costs totaling $20,289.82 ($17,506.75 in fees; $2,783.07 in costs).
- Counsel (the Burdette Firm) practices in the Greater Seattle area; petitioner requested $400/hr for Douglas Burdette (31+ years’ experience) and $275/hr for Kelly Burdette (4–6 years).
- The core legal question was whether Seattle-area counsel should receive forum (D.C./Court) rates or local rates under Avera and the Davis exception (i.e., whether local rates are “very significantly different” from forum rates).
- The special master found the Seattle-area rates were not sufficiently lower than forum rates, approved the requested hourly rates and time, awarded the requested litigation costs, and ordered payment of $20,289.82 jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non‑forum (Greater Seattle) counsel should receive forum hourly rates | Requested rates ($400 and $275) align with forum rate schedule; implicitly treated as forum rates | Respondent deferred to special master's discretion but acknowledged statutory entitlement to fees | Court sua sponte compared local and forum rates and held Davis exception does not apply; awarded requested forum-range rates |
| Whether requested attorney time was reasonable | Submitted detailed invoices showing 35.62 hrs (D. Burdette) and 11.85 hrs (K. Burdette) | No objection other than reserving rate determination to the special master | Time approved as reasonable |
| Whether litigation costs were reasonable | Requested $2,783.07 for records, testing, filing fees, and related expenses | No substantive objection | Costs awarded in full |
| Form and amount of award | Requested total $20,289.82 payable to petitioner and counsel | Respondent accepted statutory entitlement, deferred amount to court | Judgment entered for $20,289.82, jointly payable to petitioner and counsel |
Key Cases Cited
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.) (forum‑rate rule and incorporation of Davis exception)
- Hall v. Secretary of Health & Human Servs., 640 F.3d 1351 (Fed. Cir.) (special masters must use evidence and experience to determine application of Davis exception)
- Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755 (D.C. Cir.) (Davis exception: deny forum rates where most work is done outside forum and there is a very significant compensation differential)
- City of Burlington v. Dague, 505 U.S. 557 (U.S.) (fee provisions not intended to enhance lawyers’ ordinary income)
- Sierra Club v. Jackson, 926 F. Supp. 2d 341 (D.D.C.) (district court Davis‑exception analyses showing less formal, market‑based approach)