Ray v. Secretary of Health and Human Services
16-1388
Fed. Cl.Dec 16, 2020Background
- Petitioner Michael Ray filed a Vaccine Act petition alleging a shoulder injury from a January 6, 2016 tetanus vaccination.
- Special Master found entitlement (decision issued Dec. 17, 2018) and adopted a proffer awarding compensation on Nov. 20, 2019.
- Petitioner sought attorneys’ fees and costs on May 26, 2020: $63,294.50 in fees and $1,481.86 in costs (total $64,776.36).
- Respondent did not oppose an award, stating statutory requirements were satisfied.
- The special master applied the lodestar approach, approved counsel Leah Durant’s requested hourly rates, but found many billing entries vague (client communications) and slightly excessive.
- The fee award was reduced by 2% ($1,265.89); final award: $62,028.61 (fees) + $1,481.86 (costs) = $63,510.47, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees/costs after compensation | Ray sought full reasonable fees and costs following successful claim | HHS: statutory requirements met; no opposition to reasonableness | Award of reasonable attorneys’ fees and costs granted |
| Appropriate hourly rates | Requested rates for Leah Durant for 2016–2020 (ranging $350–$395) | No objection to rates | Requested rates awarded (consistent with prior awards) |
| Reasonableness of billed hours; vagueness of entries | Counsel billed many entries for client communications often labeled generically (e.g., "client call") | Respondent raised no substantive objection; special master reviewed records | Reduced fee award by 2% ($1,265.89) for vague/excessive communications |
| Recovery of litigation costs | Requested $1,481.86 for records, filing fee, postage, review | No objection | All requested costs awarded in full |
Key Cases Cited
- Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (approves lodestar approach under the Vaccine Act)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar method: hours × reasonable rate)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (court may exclude excessive, redundant, or unnecessary hours)
- Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (supports reductions for unreasonable hours)
- Avgoustis v. Shinseki, 639 F.3d 1340 (Fed. Cir. 2011) (billing entries for communications should indicate subject matter)
- Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201 (Fed. Cl. 2009) (special master may reduce fees sua sponte)
- Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719 (Fed. Cl. 2011) (no line-by-line analysis required when reducing fees)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (court may aim for "rough justice" and use estimates when adjusting fees)