Orgel-Olson v. Secretary of Health and Human Services
15-285
| Fed. Cl. | Dec 12, 2016Background
- Petitioner Shawn Orgel-Olson filed a Vaccine Program petition; no entitlement decision yet, and the case had been pending ~22 months.
- Petitioner moved for interim attorneys’ fees and costs of $37,231.02 to cover counsel fees and expenses.
- Respondent opposed awarding interim fees at this time because the request was prompted by petitioner’s counsel withdrawing; respondent also argued the requested amount was excessive and proposed a $22,000–$33,000 range.
- Petitioner replied, defending the requested amount and stating a supplemental fee request would follow for time spent replying.
- Special Master Millman found interim fees permissible when counsel withdraws and, after review, awarded the full $37,231.02 jointly to petitioner and counsel (Conway, Homer & Chin-Caplan, P.C.).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs are appropriate now | Interim fees needed because counsel withdrew and case may take months/years to resolve | Interim fees inappropriate at this juncture because request arises from counsel’s withdrawal | Awarding interim fees is appropriate when counsel withdraws and resolution is uncertain; objection rejected |
| Whether the requested amount ($37,231.02) is reasonable | The submitted billing records support the full amount; supplemental request for reply costs forthcoming | Requested amount is too high; fees should be between $22,000 and $33,000 based on survey of similar cases | Special Master exercised discretion, reviewed records, declined to reduce the request, and awarded the full $37,231.02 (but denied fees for largely boilerplate reply) |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (2008) (Federal Circuit: interim fee awards permissible under Vaccine Act)
- Shaw v. Secretary of Health & Human Services, 609 F.3d 1372 (2010) (Federal Circuit: affirmed appropriateness of interim fees under Vaccine Act)
- Cloer v. Secretary of Health & Human Services, 675 F.3d 1358 (2012) (Federal Circuit: denying interim fees conflicts with Vaccine Act purpose)
- Woods v. Secretary of Health & Human Services, 105 Fed. Cl. 148 (2012) (Court of Federal Claims: affirmed special master’s interim fee award when counsel withdrew)
- Friedman v. Secretary of Health & Human Services, 94 Fed. Cl. 323 (2010) (Court of Federal Claims: statute permits interim fee awards; special master has discretion)
- Doe/11 v. Secretary of Health & Human Services, 89 Fed. Cl. 661 (2009) (Court of Federal Claims: reversed denial of interim fees)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (1992) (special masters have wide discretion determining reasonableness of fees)
- Saxton ex rel. Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (1993) (Federal Circuit: special masters may rely on prior experience when reviewing fee applications)