Pavan v. Secretary of Health and Human Services
14-60
| Fed. Cl. | Oct 16, 2017Background
- Petitioner Michael Pavan filed a Vaccine Program petition on behalf of his minor son J.P., alleging optic neuritis and a demyelinating neuropathy (CIDP) caused or significantly aggravated by a varicella vaccine given January 24, 2011.
- Entitlement hearing was scheduled for June 2018; the case involved unusual onset, testing, and treatment issues and likely would be prolonged.
- On August 24, 2017 (supplemented September 5, 2017), petitioner sought interim attorneys’ fees and costs of $26,955.00 (fees) and $5,639.79 (costs) — total $32,594.79 — for work billed through January 1, 2017, with supporting records attached.
- Respondent deferred to the Special Master on whether statutory requirements for interim fees were met and recommended the Special Master exercise discretion to determine a reasonable award if appropriate.
- The Special Master found the petition was brought in good faith and had a reasonable basis, and determined factors (case age, complexity, delay to resolution) supported an interim award in this instance.
- The Special Master awarded the full requested interim attorneys’ fees and costs in a lump sum payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees and costs may be awarded before entitlement is proved | Pavan sought interim fees totaling $32,594.79, arguing protracted proceedings and expenses justify interim relief | HHS deferred to the Special Master to determine whether statutory standards (good faith, reasonable basis) and Avera/Shaw standards are met | Interim award permitted: petition found brought in good faith and on a reasonable basis; award granted |
| Whether the Special Master should exercise discretion to award interim fees under Avera/Shaw | Pavan argued case complexity and likely delay create undue hardship and justify interim fees | HHS recommended the Special Master determine a reasonable amount if award appropriate | Special Master exercised discretion to award interim fees given case duration, unique medical issues, and scheduling delays |
| Whether requested hourly rates, hours, and costs were reasonable | Pavan submitted contemporaneous, detailed billing records and sought no rate adjustments | HHS raised no specific objections to rates, hours, or costs | Special Master reviewed records and awarded the requested fees and costs in full, finding them reasonable |
| Whether to routinely grant interim fees in Vaccine Program cases | Pavan implicitly asked for interim relief | HHS urged Special Master discretion | Special Master emphasized interim fees are not routine, set informal thresholds (18 months pending, $30,000 threshold, $15,000 expert costs) but granted award based on case-specific factors |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves interim fees where proceedings are protracted and costly experts are needed; endorses lodestar framework)
- Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010) (interim fees appropriate when litigation costs impose undue hardship)
- Sebelius v. Cloer, 133 S. Ct. 1886 (U.S. 2013) (statutory standard for interim awards requires good faith and reasonable basis)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar method: reasonable hours multiplied by reasonable rate)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special masters may reduce hours based on experience and judgment; counsel should not bill excessive or redundant hours)