Swan v. Secretary of Health and Human Services
16-583
| Fed. Cl. | Dec 14, 2017Background
- Petitioner John Swan filed a Vaccine Program claim alleging left-shoulder injury from a Sept. 17, 2014 influenza vaccination.
- The special master denied entitlement on Feb. 15, 2017; judgment entered Mar. 20, 2017.
- Petitioner moved for attorneys’ fees and costs on May 8, 2017 seeking $11,980.00 in fees and $934.45 in costs (total $12,914.45).
- Respondent stated no objection to the overall amount but reserved objections as to specific rates, hours, or costs.
- The special master found the petition was brought in good faith and had a reasonable basis, making an award of fees and costs permissible despite dismissal.
- The special master awarded the full requested $12,914.45, payable jointly to petitioner and counsel, but noted several billing practices of concern for counsel to address going forward.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unsuccessful petitioner may receive fees | Swan argued fees/costs are recoverable because claim was brought in good faith with reasonable basis | HHS did not object to total amount but reserved rights on specific rates/hours | Awarded: fees and costs granted because petition was in good faith and had reasonable basis |
| Whether the requested amount is reasonable | Swan submitted contemporaneous time/expense records and rate support | Respondent offered no substantive objection to overall amount | Awarded: special master found hours and rates reasonable and made no reduction |
| Whether certain billing entries were improper or excessive | Swan billed for file review, routine notices, scheduling, and related tasks | Respondent noted no objection but preserved challenges to specific billing practices | Not reduced here, but special master flagged multiple concerns (excessive file-review blocks, billing for routine notices at 0.2 hrs, scheduling billed separately) and cautioned against billing clerical work |
| Whether billing clerical/secretarial work is recoverable | Swan included routine administrative entries in billed time | HHS referenced prevailing precedent that clerical work is not compensable | Special master noted clerical billing is impermissible per precedent but did not reduce award in this instance; cautioned counsel going forward |
Key Cases Cited
- Rochester v. United States, 18 Cl.Ct. 379 (1989) (denying fees for time billed by secretaries as overhead rather than compensable attorney work)
- Beck v. Sec'y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991) (attorney may not charge or collect fees beyond amount awarded under § 15(e))