Onikama v. Secretary of Health and Human Services
15-1348
| Fed. Cl. | May 3, 2017Background
- Petitioner filed a Vaccine Program petition (Nov 2015) alleging post‑vaccination seizure disorder and developmental delay in a minor.
- Petitioner requested multiple extensions to file an expert report but none was filed; counsel (Richard Gage) moved for interim attorneys’ fees and costs and stated his intent to withdraw.
- Petitioner sought $13,647.24 in fees and costs billed at forum (D.C.) rates; respondent opposed interim payment and argued local Cheyenne rates apply, estimating a reasonable total between $8,000–$12,000.
- The special master ordered supplemental briefing on whether Mr. Gage is entitled to forum or local (Cheyenne, WY) rates and reviewed prior Program and non‑Program fee awards and local cost data.
- The special master found the claim filed in good faith and with a reasonable basis and that interim fees were appropriate given counsel’s withdrawal and the case circumstances.
- The special master awarded interim fees and costs totaling $12,125.29 (joint check to petitioner and counsel), compensating counsel at local Cheyenne rates rather than forum rates and setting specific rates for associate/paralegals and allowable costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees are appropriate now | Interim award is appropriate because counsel will withdraw and work already performed merits payment | Interim fees premature; withdrawal alone insufficient without Avera factors (protracted proceedings, costly experts, undue hardship) | Interim fees awarded: withdrawal and case circumstances justify award now |
| Whether the case had a reasonable basis for fee award | Case supported by medical records and prior expert engagement; counsel’s withdrawal indicates inability to secure final expert but not lack of basis | Respondent did not dispute good faith/reasonable basis | Court found the petition had a reasonable basis throughout and awarded fees for counsel’s work |
| Whether forum (D.C.) rates or local (Cheyenne) rates apply | Forum and Cheyenne rates are not "very significantly different"; forum rates should apply (requests median $387.50/hr) | Cheyenne rates remain materially lower; prior precedent supports local rates | Local rate used: Mr. Gage $311/hr (2016); difference deemed "very significant" so local rate applied |
| Reasonableness of rates, hours, and costs (incl. associates/paralegals) | Requested rates: Gage at forum level, associate and paralegals at higher rates; hours and costs submitted contemporaneously | Respondent challenged forum rate and urged lower local rates; generally did not dispute hours and costs range | Special master adjusted rates: set associate/paralegal rates ($150, $120, $120, $100), found hours reasonable, awarded costs $3,746.99 and net fees $8,378.30 (total $12,125.29) |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (interim fees permissible; forum vs local rate framework)
- Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283 (Fed. Cir. 2011) (affirming local rates for a Cheyenne attorney)
- Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351 (Fed. Cir. 2011) (affirmed special master’s local‑vs‑forum rate analysis)
- Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010) (interim fees standard under Vaccine Act)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar method for fee calculation)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters’ discretion in fee reasonableness)
- McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297 (Ct. Fed. Cl. 2011) (discussion of when interim fees are warranted)