Schultheis v. Secretary of Health and Human Services
13-781
| Fed. Cl. | Jun 30, 2017Background
- Petitioner Kenneth Schultheis filed a Vaccine Program petition alleging influenza and/or tetanus vaccines (Jan 16, 2012) caused GBS and CIDP; compensation awarded by joint stipulation on Oct. 11, 2016.
- Petitioner sought attorneys’ fees of $36,787.10 and costs of $7,594.18 on April 11, 2017; Respondent raised no substantive objection to entitlement and asked the Special Master to determine a reasonable amount.
- Majority of counsel’s work was performed from Maglio, Christopher & Toale’s Washington, D.C. office, so forum (McCulloch) rates govern, subject to Davis County exceptions.
- The Special Master applied the lodestar method (hours × reasonable hourly rate), reviewed billing records for contemporaneousness and reasonableness, and adjusted certain rates and travel billing.
- Adjustments: reduced Danielle Strait’s 2017 rate from $320 to $307 and 2016 rate from $306 to $300 (total $152), and reduced travel billing by awarding two-thirds of the travel rate (reducing $226.17).
- Result: attorneys’ fees awarded $36,408.93; attorneys’ costs awarded $7,594.18; total award $44,003.11, paid jointly to Petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys’ fees and costs under the Vaccine Act | Fees and costs are recoverable following successful compensation; requested rates/hours are reasonable | Respondent did not contest entitlement and deferred to Special Master on reasonableness | Award of fees and costs appropriate under 42 U.S.C. § 300aa-15(e) |
| Proper hourly forum rate for counsel (Ms. Strait) | Requested higher forum rates ($320 in 2017; $306 in 2016) as reasonable given experience | Respondent left rate determination to the Special Master; Special Master to apply McCulloch/McCulloch-derived forum schedule | Reduced rates to $307 (2017) and $300 (2016) consistent with McCulloch ranges |
| Treatment of travel time billing | Counsel billed full hourly rate for travel and asserted client-related work | Plaintiff argued contemporaneous entries showed travel-related client work | Special Master awarded two-thirds of travel rate (travel at 2/3 of attorney’s hourly rate) where driving limited productive work |
| Reimbursement of litigation costs (records, travel, filing, postage) | Requested $7,594.18 for reasonable litigation-related expenses | Respondent did not object to specific costs | All requested costs awarded in full as reasonable |
Key Cases Cited
- Avera v. Secretary of Health & Human Services, 515 F.3d 1343 (2008) (endorses lodestar method and forum-rate approach for Vaccine Program fees)
- Blum v. Stenson, 465 U.S. 886 (1984) (establishes lodestar standard: hours × reasonable hourly rate)
- Saxton v. Secretary of Health & Human Services, 3 F.3d 1517 (1993) (special masters have broad discretion to determine reasonable fees)
- Davis County Solid Waste Management & Energy Recovery Special Service District v. United States, 169 F.3d 755 (1999) (permits local-rate exception where most work performed outside forum and a very significant rate difference exists)
- Gruber v. Secretary of Health & Human Services, 91 Fed. Cl. 773 (2010) (permits full forum-rate travel billing when attorney shows productive work during travel)
- Hines v. Secretary of Health & Human Services, 22 Cl. Ct. 750 (1991) (recognizes wide latitude for special masters in fee determinations)
- Perreira v. Secretary of Health & Human Services, 27 Fed. Cl. 29 (1992) (fees and costs must be reasonable to be awarded)