Power v. Secretary of Health and Human Services
15-327
| Fed. Cl. | Sep 20, 2017Background
- Petitioners Philip and April Power filed a Vaccine Program petition on behalf of their minor child C.P., alleging encephalopathy and behavioral changes after an MMR vaccine (filed March 30, 2015).
- After multiple extensions to collect records and attempt to secure an expert, petitioners conceded they could not obtain expert support and filed a motion to dismiss; the special master dismissed the petition on January 9, 2017.
- Petitioners then sought attorneys’ fees and costs totaling $41,116.03 ($36,519.21 in fees; $4,596.82 in costs), submitted contemporaneous billing and cost records, and represented no out‑of‑pocket expenses by petitioners.
- Respondent did not object to the amount requested and expressly left the determination of a reasonable award to the special master; respondent did not contest reasonable basis for the claim.
- The special master applied the lodestar framework, assessed forum rates for counsel in the New York/Englewood, NJ area, reviewed hours and costs (including expert fees and record fees), and found the requested rates, hours, and costs reasonable.
- The special master awarded the full requested amount, directing payment jointly to petitioners and counsel and entry of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees after dismissal | Fees recoverable because petition was brought in good faith and had reasonable basis | No objection to entitlement or reasonable basis; left reasonableness to court | Fees awarded; respondent waived reasonable‑basis challenge by not raising it |
| Appropriate hourly rates (forum vs. local) | Counsel located in Englewood, NJ; requests forum (NY/DC) rates | Respondent did not contest forum rates | Forum rates applied; requested rates found consistent with McCulloch schedule and prior awards |
| Reasonableness of hours billed | Hours and tasks documented; counsel sought full lodestar | Respondent raised no specific hour reductions; deferred to special master’s discretion | Hours reviewed and found reasonable; full fees awarded |
| Recoverable costs (experts, records) | Requested $4,596.82 for expert and records costs | No objection to costs amount | Costs (including $3,400 expert fee and $782 for records) awarded in full |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (Fed. Cir. 2008) (endorsing lodestar method for Vaccine Act fee awards)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (definition of reasonable hourly rate for fee awards)
- Rodriguez v. Secretary of Health & Human Services, 632 F.3d 1381 (Fed. Cir. 2011) (forum rates generally govern; limited local‑rate exception)
- Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755 (D.C. Cir. 1999) (foundation for Davis County exception permitting local rates)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (hours must be reasonable; exclude excessive or redundant billing)
- Beck v. Secretary of Health & Human Services, 924 F.2d 1029 (Fed. Cir. 1991) (award covers all legal expenses and precludes additional client charges)