Hoehner v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 7, 2016
* * * * * * * * * * * * * * * PUBLISHED
JANET HOEHNER, * Case No. 14-637V
*
Petitioner, * Special Master Hamilton-Fieldman
*
v. * Attorneys’ Fees and Costs;
* Local Rates; Travel Expenses;
SECRETARY OF HEALTH * Hours Expended; Memphis, Tennessee.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Michael McLaren, Black McLaren Jones Ryland & Griffee, PC, Memphis, TN, for Petitioner.
Ryan Pyles, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Janet Hoehner (“Petitioner”) seeks an award of attorneys’ fees and costs under Part 2 of
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 to -34 (2012)
(hereinafter “Vaccine Act”). The main contested issue is Petitioner’s assertion that her attorneys’
hourly rates should be determined using the forum rate schedule set forth in McCulloch v. Sec'y
of HHS, No. 09-293V, 2015 WL 5634323, at *19-21 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). See
Pet’r’s Mot. for Att’ys Fees at 4-5, ECF No. 47 (hereinafter “Mot.”).
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002. See 44 U.S.C. § 3501 (2012). Each
party has 14 days to request redaction “of any information furnished by that party: (1) that is a
trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b).
1
Respondent asserts that the exception to forum rates, elucidated in Davis Cty. Solid Waste Mgmt.
& Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755 (DC Cir. 1999), and first applied to
vaccine cases in Avera v. Sec'y of HHS, 515 F.3d 1343 (Fed. Cir. 2008), should control here;
correspondingly, Petitioner should be awarded local rates appropriate to Memphis, Tennessee,
where her counsel practices. See Avera, 515 F.3d at 1350; see also Resp’t’s Sur-Reply at 3, ECF
No. 51. After careful consideration, the undersigned hereby approves, in part, Petitioner’s
Application for attorneys’ fees and costs, based upon application of the Davis exception.
I. PROCEDURAL HISTORY
On July 21, 2014, Petitioner filed a petition under the Vaccine Act, which alleged that she
suffered from Guillain-Barré Syndrome (“GBS”), acute/chronic inflammatory demyelinating
polyneuropathy (“AIDP” and “CIDP”), “and/or other neurologic and physical impairments”
caused by the trivalent influenza vaccine. Pet. at 1, ECF No. 1. Based on the joint stipulation by
the parties, the undersigned issued a decision awarding compensation to Petitioner on March 21,
2016. Decision, ECF No. 42.
On May 16, 2016, Petitioner filed an Application for Attorneys’ Fees and Expenses
pursuant to Vaccine Rule 13. Mot. at 1. Petitioner requested $48,906.50 for attorneys’ fees,
$199.29 for expenses, and $7,453.78 for costs, for a total of $56,559.57. Mot. (Ex. 2) at 24-25.
On June 1, 2016, Respondent filed a Response to Petitioner’s motion, in which she argued that a
reasonable amount for Petitioner’s fees and costs would fall between $24,000 and $34,000.
Resp’t’s Resp. at 1-3, ECF No. 48.
Petitioner filed a Reply to the Response on June 30, 2016. Pet’r’s Reply, ECF No. 50. In
the Reply, at the undersigned’s request,2 Petitioner set forth her argument concerning why forum
rates are appropriate in this case. Id. at 3-18. Petitioner also provided a “Supplemental Fee Bill”
for $7,279.30 to cover the fees and costs incurred for the fee litigation. Pet’r’s Reply (Ex. 2). On
July 13, 2016, Respondent filed a Sur-Reply in which she made a detailed argument as to why
Petitioner should not be awarded forum rates and why the hours and litigation expenses billed
were unreasonable. See generally Resp’t’s Sur-Reply, ECF No. 51. Lastly, Petitioner filed a
“Sur-Sur-Reply,” on July 21, 2016, in which she criticized Respondent’s use of “substantially
lower” as the Avera standard, Respondent’s reliance on stipulations to establish rates, the failure
of Respondent to address experience levels in the District Court cases that Respondent cited, and
reliance on the Real Rate Report. Pet’r’s Sur-Sur-Reply, ECF No. 52. Petitioner also defended
2
On June 3, 2016, the undersigned informally contacted Petitioner’s counsel’s office to request
that he “address, in his Reply, why counsel is entitled to compensation for his fees at a forum
hourly rate rather than at a locality hourly rate.” See Informal Communication, docketed June 3,
2016.
2
the specific travel expenses that Respondent disputed, including a steakhouse meal and a rental
car upgrade, as well as fees incurred on “simple filings.” Id. at 4-6.
The undersigned filed her Decision on fees on September 9, 2016. On September 16,
2016, Petitioner filed a Motion for Reconsideration, requesting “that the Court reconsider a
single component of the mathematical equation used to determine Petitioner’s counsel’s base
local rates, as set forth on page 10 of its Decision.” Motion to Reconsider at 2-3, ECF No. 54.
Respondent’s request for additional time to respond to the Motion was granted in part, with a
response due October 24, 2016. Order, ECF No. 58. No response was filed, and Respondent’s
untimely request for an additional extension was denied. Order, ECF No. 61.
The matter is now again ripe for adjudication.
II. DISPUTED ISSUES
A. Reasonable Hourly Rate
The primary dispute in this case concerns setting reasonable hourly rates for Petitioner’s
counsel and paralegals. Petitioner asserts that the hourly rates should be based on the forum rates.
See generally Pet’r’s Reply. Respondent asserts that the overall amount of Petitioner’s requested
fees should be heavily reduced. See generally Resp’t’s Sur-Reply. Respondent also argues that
the difference between the rates for attorneys generally in the forum (Washington, DC) versus
the rates for attorneys in Memphis, TN, where Petitioner’s counsel is located, is significant, and
that the Davis County exception to forum rates therefore should apply. See Resp’t’s Sur-Reply at
7-11.
B. Number of Hours Expended
Respondent also objects to the “unreasonable number of hours” that Petitioner billed in
this case. Resp’t’s Sur-Reply at 11. Respondent requests that the undersigned “exercise her
broad discretion to determine the reasonable hours . . . in this case.” Id. at 12. As part of her
objection to the overall number of hours billed, Respondent made specific objections to several
aspects of Petitioner’s counsel’s billing practices.
i. Hourly Rate for Time Spent Travelling
Petitioner argues that her attorney should be compensated at the full hourly rate for all
time spent travelling, regardless of whether work was being performed during this time:
3
Petitioner’s counsel makes it a habit to work on the case while traveling when
possible, such as on an airplane or while waiting on a layover in an airport, and
counsel did so in this case . . . . However, during times when Petitioner’s counsel is
traveling but unable to actively work on the file, Petitioner asserts that the law
supports the conclusion that the full rate should still apply.
Mot. at 9.
As a general matter, Respondent disagrees that Petitioner’s counsel is entitled to
compensation at his full hourly rate for travel time. Resp’t’s Sur-Reply at 11, n. 12. Respondent
also notes that the travel time for which counsel billed at his full rate included driving time, and
that he had billed “considerable time prior to his travel for performing the same tasks.” Id.
ii. Travel Expenses
Respondent also objects to a few of Petitioner’s travel expenses, including an expensive
meal and a rental car upgrade. Resp’t’s Sur-Reply at 11. In response, counsel points out that his
total food and drink expenses over a three-day period amounted to only $125.65, and that this
amount is less than the current federal government per diem allowance for meals and incidental
expenses. Pet’r’s Sur-Sur-Reply at 4-5. Petitioner’s counsel also asserts that the car he
ultimately rented saved money over the original rental. Id.
iii. Billing an Attorney Rate for “Simple Filings”
Finally, Respondent argues that it was unreasonable for counsel to bill at attorney rates
for tasks such as filing a notice of appearance and reviewing scheduling orders and notices of
assignment. Resp’t’s Sur-Reply at 11. Petitioner argues, in response, that “it is reasonable for all
counsel involved to stay apprised of what is happening in the case.” Pet’r’s Sur-Sur-Reply at 5-
6.
III. LEGAL STANDARD
Under the Vaccine Act, a special master can award “reasonable” attorneys’ fees and
litigation costs in Vaccine Act cases. 42 U.S.C. § 300aa-15(e)(1). When petitioners are
successful in pursuing a claim under the Act, their attorneys are entitled to compensation for their
services. See § 300aa-15(e)(1).3
3
When petitioners are unsuccessful, their attorneys still have the opportunity to obtain
“reasonable attorneys’ fees” if the special master finds that the petitioner in question filed the
4
The United States Court of Appeals for the Federal Circuit has approved use of the
lodestar method to determine what constitutes reasonable attorneys’ fees. See Avera, 515 F.3d at
1347-48. The lodestar method requires that a court multiply “the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Id. (quoting Blum v. Stenson, 465
U.S. 886, 888 (1984)). Once the initial calculation is made, a court can adjust the fee award
upward or downward based on other specific findings. Id. at 1348.
A special master, relying on her prior experience, has broad discretion in determining the
reasonableness of the number of hours expended by attorneys. See Saxton v. Sec’y of HHS, 3
F.3d 1517, 1521 (Fed. Cir. 1993). A special master can reduce any number of hours expended
that are “excessive, redundant, or otherwise unnecessary.” Id. (quoting Hensley v. Eckerhart,
461 U.S. 424, 434 (1983)). The burden rests with the petitioner to prove that the number of
hours expended was reasonable by “keeping records in a manner that will enable a reviewing
court to identify distinct claims.” See Gruber v. Sec’y of HHS, 91 Fed. Cl. 773, 785 (2010)
(quoting Hensley, 461 U.S. at 437).
“Reasonableness” is generally determined by looking at a hypothetical plaintiff and
whether that plaintiff would be willing to pay for particular expenditures when using his or her
own resources to finance an attorney. See O’Neill v. Sec’y of HHS, No. 08-243V, 2015 WL
2399211, at *1-2 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Expanding on this idea, the Federal
Circuit reasoned that “[h]ours that are not properly billed to one’s client also are not properly
billed to one’s adversary pursuant to statutory authority.” See Saxton, 3 F.3d at 1521 (quoting
Hensley, 461 U.S. at 433-34). Ultimately, the petitioner bears the burden to show that the
requested attorneys’ fees and expenses are reasonable. See Hocraffer v. Sec’y of HHS, No.
99533V, 2011 WL 3705153, at *1, *5 (Fed. Cl. Spec. Mstr. July 25, 2011), aff’d, 2011 WL
6292218 (Fed. Cl. Nov. 22, 2011).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience
and reputation.” Id. at 895, n. 11. The petitioner bears the burden of providing adequate
evidence to prove that the requested hourly rate is reasonable. Id.
In Avera, the Federal Circuit determined that the forum of the Vaccine Act is
Washington, DC. 515 F.3d at 1348. The Federal Circuit also decided that the forum rate for
petition “in good faith” and had a “reasonable basis for the claim.” See Sebelius v. Cloer, 133 S.
Ct. 1886, 1891 (2013). Because Petitioner was successful in pursuing her claim, these issues are
not before the undersigned.
5
attorneys’ fees should generally apply in Program cases. Id. However, it created an exception
pursuant to Davis County: where most of an attorney’s work is performed outside of the forum
and there is a “very significant difference” between the forum rate and the attorney’s lower local
rate, a court should calculate fees under the local rate. Id. at 1349. A court must first determine
the forum rate, then determine the local rate, and finally determine whether a “very significant
difference” exists between them. Davis Cty., 169 F.3d at 758.
Because the primary disagreement between the parties in the present case revolves around
the hourly rates for counsel and paralegals, the analysis herein focuses heavily on that issue.
IV. ANALYSIS
A. Hourly Rates
i. Forum Rates
In McCulloch4, Special Master Gowen undertook a detailed analysis of how previous
special masters have determined appropriate forum rates. McCulloch v. Sec’y of HHS, No. 09-
293V, 2015 WL 5634323, at *14-15 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Special Master Gowen
then made three key findings that are relevant here. First, he compared the average hourly rates
in Boston to those in Washington, DC and determined that they were not “very significantly
different” pursuant to Davis County and Avera, and therefore concluded that attorneys in Boston
should be compensated at the forum rates. Id. at *13-14. Second, he established “experience
categories” to apply to forum rates based on the experience breakdown in the Laffey Matrix. Id.
at *15, 19. Lastly, he concluded that 3.7 percent, as found in the Real Rate Report, was an
appropriate annual growth rate for attorneys’ fees for the years following the Great Recession
(2009 onward). Id. at *9, 16.
Using a multifactorial approach, Special Master Gowen then calculated a range of forum
rates based on five experience levels:
[T]he range of $350 to $425 an hour for attorneys with more than 20 years of
experience is a reasonable forum rate. The higher end of the range should be
4
In numerous cases, the undersigned has concluded that the range of rates articulated in
McCulloch, for the Washington, DC forum, were reasonable. See, e.g., Clowser v. Sec’y of HHS,
No. 13-2V, 2016 WL 3265894, at *2 (Fed. Cl. Spec. Mstr. May 23, 2016); Faucher v. Sec’y of
HHS, No. 13-850V, 2015 WL 9252596, at *2 (Fed. Cl. Spec. Mstr. Nov. 25, 2015); Gamardo v.
Sec’y of HHS, No. 13-797V, 2015 WL 9252532, at *2 (Fed. Cl. Spec. Mstr. Nov. 25, 2015).
6
awarded to those with significant Vaccine Program experience who perform high
quality legal work in vaccine cases. Similarly, I have concluded that lawyers with
11 to 19 years of experience may reasonably charge $300 to $375 an hour, with
higher rates to be paid to those with significant vaccine experience who perform
quality work in these cases. Attorneys with 8 to 10 years’ experience may
reasonably request and be paid $275 to $350 an hour. Attorneys in practice for 4
to 7 years may reasonably charge $225 to $300, and those with less than 4 years’
experience may receive between $150 and $225.
Id. at *19. After creating these rate ranges, he considered the various experience levels and
qualifications of each attorney in the case and determined each attorney’s rate accordingly. Id. at
*19-20.
The undersigned finds Special Master Gowen’s analysis and pay ranges useful for this
case. If the forum rate applies, the appropriate hourly rates will be determined using the above
factors and pay ranges, with one adjustment. Since the original Decision was posted in this case
and then withdrawn, the Court of Federal Claims has posted on its website a chart denominated
“[Office of Special Masters] Attorneys’ Forum Hourly Rate Fee Schedule 2015-2016.” That fee
schedule is basically the schedule set forth in McCulloch, but with one significant difference
applicable to the present case: an experience category was added to the top of that schedule, for
attorneys with “31+ years of experience in practice, $385-$430.” To the undersigned’s
knowledge that category has not been adopted in a decision such as McCulloch. Nevertheless,
the addition of the category appears to the undersigned to be consistent with the fee structure
announced in McCulloch and is therefore adopted by the undersigned in this decision. There is
no question in the undersigned’s mind that Mr. McLaren belongs in that top category, so his
potential forum rate applicable herein has been adjusted accordingly. Specifically, for 2015,
Michael G. McLaren’s (“MGM”) forum rate is at $420 per hour, William E. Cochran, Jr.
(“WEC”) at $345 per hour, Chris J. Webb (“CJW”) at $295 per hour, and paralegals $135-145
per hour. Before awarding those rates, however, the undersigned must determine the local rate
applicable to Memphis, Tennessee, where McLaren and his associates practice, and then decide
whether a “very significant difference” between the two rate structures exists, such that it is more
appropriate to award the lower local rate. See Avera, 515 F.3d at 1349.5
5
Insofar as the Davis County exception is concerned, Petitioner’s counsel’s billing records
clearly indicate that the bulk of work on her behalf was performed in Memphis, TN.
Accordingly, the undersigned does not further discuss this portion of the exception.
7
ii. Local Rates
Determining the local rates of an attorney’s home “community” is no easy task. No set
standard or scale exists to determine locality rates. Special Masters are therefore forced to rely
on “declarations, previous comparable litigation, and [their] own experience in similar cases.”
See Hall v. Sec’y of HHS, 640 F.3d 1351, 1357 (Fed. Cir. 2011). Regardless of the analytical
methodology utilized, the burden is on the petitioner to provide persuasive evidence that the
requested rates are appropriate, Blum, 465 U.S. at 895-96, n.11, and the determination of what
constitutes reasonable locality fees is within the special master’s discretion. Hall, 640 F.3d at
1356.
Petitioner argues that the 20166 local rate for MGM should be $407 per hour. This rate is
based on four pieces of evidence offered by Petitioner: 1) MGM’s “current standard retainer
local hourly rates for non-complex, general litigation matters,” $405 per hour; 2) MGM’s
previously awarded rates in a contested vaccine case, Heath v. Sec’y of HHS, No. 08-86V, 2011
WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011), $280 per hour for work performed from 2007
through 2011, adjusted by a growth factor of 3.7 percent per year as set forth in McCulloch and
the 2014 Real Rate Report submitted therein by Respondent, resulting in $336 to $388 per hour,
depending on the year from which the growth rate adjustment is applied; 3) the rates awarded in
2015 in the U.S. District Court for the Western District of Tennessee (the district in which
Memphis is located) to an attorney with 29 years of experience, for work performed during
2013-2015, which was $350 per hour (see Cole v City of Memphis, 2015 WL 5076974, at *6-8
(W.D. Tenn. Aug. 27, 2015)) adjusted by both the 3.7 percent growth factor and the “risk
premium” factor of 18.3 percent developed by Special Master Gowen in McCulloch,7 resulting in
6
Petitioner calculated rates for 2016, and those are therefore the numbers the undersigned has
reiterated for purposes of setting forth Petitioner’s arguments. However, the most extensive data
presented by both parties on local rates in Memphis, and the data that needed the least
manipulation and adjustment, was from 2015. In addition, McCulloch was issued in 2015 and
established 2015 forum rates for comparison, and much of the work performed in this case was
performed in 2015. The undersigned’s calculations of local rates are therefore for 2015, with
appropriate adjustments for 2014 and 2016 as necessary.
7
The undersigned agrees that it is appropriate to adjust rates for comparison using both the risk
premium (an adjustment to rates awarded in non-vaccine cases to account for the fact that, in
vaccine cases, attorneys’ fees may be awarded regardless of whether petitioners prevail on their
underlying claims, whereas in non-vaccine cases, fees are generally awarded only to prevailing
parties) and a growth rate, and that the percentages established by McCulloch for that purpose
are appropriate. However, Petitioner has applied them in the wrong sequence: the risk premium
is the adjustment that makes the rates closer to an “apples to apples” comparison, and should be
8
a 2016 adjusted rate range of $297 to $319 per hour; and 4) the rates awarded in Doe v. Bd. of
Educ of Memphis City Sch., 2007 U.S. Dist. LEXIS 1032078 (W.D. Tenn. Jan. 9, 2007), for work
performed in 2005 and 2006 by an attorney with 40 years of litigation experience, which was
$425 per hour, with growth factor and risk premium adjustments yielding a rate of $481 to $517
per hour. See generally Pet’r’s Reply. Petitioner then took the median of the high, $517 per
hour, and low, $297 per hour, adjusted rates derived as noted above, yielding an average local
hourly rate of $407 per hour for 2016.
Petitioner cited similar evidence and performed similar calculations to yield local hourly
rates for WEC (14 years of experience) of $311 per hour (the median of $328 per hour and $294
per hour), and for CJW (8 years of experience) of $270 per hour.
Respondent countered with several 2015 vaccine cases in which Petitioner’s counsel had
actively sought or negotiated a rate for MGM of $300 per hour, for WEC of $275 per hour, for
CJW of $240 per hour, and for paralegals of $100 per hour. Resp’t’s Sur-Reply at 4. In fact,
Respondent noted in her Sur-Reply, these rates “may actually be high,” in light of rates awarded
in cases from the Western District of Tennessee, including the Cole case cited by Petitioner, and
in light of the rates identified in the 2014 Real Rate Report. See id. at 4-7. Respondent
ultimately used these rates for comparison and argument concerning application of the Davis
County exception. Id. at 9.
The undersigned agrees with Respondent that evidence concerning the rates
Petitioner’s counsel was willing to accept in vaccine cases in 2015 is relevant to the question of
what constitutes appropriate local rates in this case. However, the undersigned is not convinced
that they are truly “local” rates— they appear to be a hybrid of sorts, reached after some
litigation and much negotiation, and to have been applied exclusively in vaccine cases prosecuted
by these attorneys, quite isolated from other fees awarded in the Memphis locality they
purportedly represent. As such, they should be considered in the mix of rates to reach a “local”
rate, but they should not in themselves be determinative of that rate. In addition, there is no
doubt that these rates have grown far slower than would otherwise be expected— $280 per hour
was the rate applied in Heath to MGM’s services performed from 2007 to 2011; $300 per hour in
2015 represents only a 7.1 percent increase over 4-8 years, which is completely out of sync with
the 3.7 percent annual growth rate in attorneys’ fee rates put forth in Respondent’s own exhibit,
the Real Rate Report (which was itself significantly less than the 7 percent growth rate in
applied first, and the growth rate should then be applied to the resulting risk premium adjusted
number.
8
The undersigned cites to Lexis because no Westlaw citation is available.
9
attorneys’ fee rates that had applied before the Great Recession)9. See McCulloch, 2015 WL
5634323 at *16.
Using the rates awarded in cases from the Western District of Tennessee, cited by both
10
parties, as well as the Heath rates, adjusted by application of the 3.7 percent growth factor from
2009 to 2015, and the final rates relied upon by Respondent, the undersigned determines that the
following are the applicable local rates for 2015 for Petitioner’s counsel.
For MGM, the undersigned uses an average of four rates to reach the applicable local
rate. First, there is the rate of $350 per hour from Cole, reduced by 18.3 percent ($64), for a
2013 rate of $286, multiplied by the 3.7 percent growth factor to 2015, yielding $308 per hour.11
9
This slow growth rate was recently recognized by another special master in Dezern v. Sec’y of
HHS, 13-643V, Slip Op. (Fed. Cl. Spec. Mstr. Oct. 14, 2016). In that decision, Special Master
Corcoran noted that “[t]he rates paid to Vaccine Program counsel may well have been held down
for the past several years, whether due to slow economic growth generally or informal
compensation/rate agreements struck between frequent Program counsel and the Department of
Justice that have now been deemed (not surprisingly, by the petitioners’ bar) stale.”
10
Although Petitioner asserted that the “most comparable rate situation” for MGM’s fees is that
presented by Doe, the undersigned finds that case inapposite. Doe involved allegations of child
sexual abuse by persons in positions of trust (the case was brought against, among others,
teachers and a principal in both their official and personal capacities). 2007 U.S. Dist. LEXIS
103207, at *4-5. In awarding fees, the court specifically considered: the difficulty and
complexity of the litigation; the possibility that counsel would not be compensated at all; “the
undesirability of the case,” given the “nature of the allegations and the distastefulness of the
subject matter,” the difficulties in pursuing the case, “including the reluctance of witnesses and
Defendants to be forthcoming in matters such as this,” and “just as critically important, the
necessary litigation skill and expertise required to obtain information, interview witnesses and
perform the legal services necessary to secure the result achieved in this case for the minor
Plaintiff.” 2007 U.S. Dist. LEXIS 103207 at *4-5. Accordingly, the 18.3 percent risk premium
from McCulloch is simply inadequate to account for the differences between Doe and the
litigation at issue here. The undersigned therefore did not include Doe in her local rate
calculations.
11
The undersigned has some of the same concerns about Cole as she has about Doe, although to
a lesser degree: Cole was a class action case brought by Plaintiffs Cole and Edmond seeking
injunctive relief and monetary damages against the City of Memphis for its allegedly
unconstitutional practice of clearing pedestrians from Beale Street in Memphis without any
public safety reason for doing so. After trial, a jury found that Cole had been removed from
10
Second, there is the Heath rate of $280 per hour, multiplied by the 3.7 percent growth factor
from 2009 (the end of the Great Recession) to 2015, yielding $348 per hour. Third, there is the
rate that MGM charges private clients for general civil litigation, $405 per hour, less the 18.3
percent risk premium, yielding $331 per hour.12 Fourth and finally, there is Respondent’s
Beale Street without probable cause or the existence of a risk to public safety, with excessive
force, and as the result of a well-established practice of the Memphis Police Department, and
awarded him $35,000 in damages. The trial court subsequently ruled that the practice was
unconstitutional. 2015 WL 5076974 at *1-2. Prior to trial, Plaintiffs’ counsel was required to
brief several motions to dismiss and motions for summary judgment and to brief and argue their
class certification motion; post-trial they were required to brief remedies issues, participate in a
hearing on injunctive relief, and respond to Defendants’ motion to decertify or modify the class.
Id. At *3. There was, in addition, the risk that no compensation or less compensation might be
awarded, as the fees statute applicable Cole, 42 U.S.C. §1988(b), permits but does not require the
award of attorneys’ fees to a prevailing plaintiff, see id. at *6, whereas an award of fees to a
prevailing petitioner is mandatory under the Vaccine Act. 42 U.S.C § 300aa-15(e)(1).
These legal complexities far exceed the legal complexities encountered in Program cases,
even Program cases that proceed to hearing, which the present case did not. Nevertheless, both
parties have cited the Cole case as one upon which the undersigned should rely after the 18.3
percent risk premium adjustment has been applied, and that adjusted rate is therefore included in
the undersigned’s calculations.
12
It is the undersigned’s adjustment of this rate by the risk premium that underlies Petitioner’s
Motion for Reconsideration. Petitioner’s counsel argues that his clients pay his fees for this type
of litigation whether or not they prevail on their claims, and therefore that the risk premium
applied to fee-shifting statute awards should not apply. While fee-shifting cases are one example
of the application of a risk premium discount to fee rates, they are not the only context in which
that application is appropriate. The undersigned was in private practice for a number of years,
and knows too well the vagaries of billing – post-retainer no pay and slow pay, discounting and
charge-offs, client satisfaction adjustments, client bankruptcies. Even large firms with the
resources to commit to aggressive collections build in an uncollectibles percentage into their
business plans. It is a rare small firm that does not include a 15 to 20 percent cushion in its
business plan to account for these uncollected fees. The undersigned’s application of the 18.3
percent risk premium to the rates charged by Petitioner’s counsel to private clients accounts for
these issues in the calculation of a local rate.
11
suggested rate of $300 per hour. Adding $308, $348, $331, and $300 equals $1287, which, when
divided by 4, yields a 2015 rate of $321.75, which the undersigned rounds up13 to $322 per hour.
For WEC, the undersigned uses a similar average. First, there is the $240 per hour from
Heath, in 2009, multiplied by the 3.7 percent growth factor to 2015, yielding $299 per hour.
Second, there is the $300 per hour, from local cases in which attorneys of similar experience
were awarded such a rate,14 less the 18.3 percent risk premium, multiplied by the 3.7 percent
growth factor from 2011 to 2015, yielding $283 per hour. Third, there is the rate that WEC
charges private clients for general civil litigation, $300 per hour, less that 18.3 percent risk
premium, yielding $245 per hour. Fourth and finally, there is Respondent’s suggested rate of
$275 per hour. Adding $299, $283, $245, and $275 equals $1102, which, when divided by 4,
yields a 2015 rate of $276 per hour.
For CJW, the undersigned repeats her calculations. First, there is the rate of $250 per
hour in Cole, less the 18.3 percent risk premium, grown by the 3.7 percent growth factor from
2013 to 2015, yielding $220 per hour. Second, there is the rate of $300 per hour in another local
case,15 less the 18.3 percent risk premium, grown by the 3.7 percent growth factor from 2009 to
2015, yielding $304 per hour. Third, there is the rate that CJW charges private clients for general
civil litigation, $250 per hour, less the 18.3 percent risk premium, yielding $204 per hour.
Fourth and finally, there is Respondent’s suggested rate of $240 per hour. Adding $220, $304,
$204, and $240 equals $968, which, when divided by 4, yields a 2015 rate of $242 per hour.
In summary, the applicable local rates for Petitioner’s counsel are:
-MGM: $322
-WEC: $276
-CJW: $242
13
Multiplying by 3.7 percent and 18.3 percent frequently leads to uneven numbers. In
performing the calculations used herein, the undersigned rounded up amounts from .50 to .99,
and down from.49 to.01.
See Pet’r’s Reply at 10-11 (citing Jeffery Jacobs v. Memphis Convention and Visitors Bureau,
14
No. 2:09-025999, 2012 WL 4461275, at *1 (W.D. Tenn. Sept. 25, 2012); Macklin v. Delta
Metals Co., No. 2:08-cv-02667, 2011 WL 11417, at *2-3 (W.D. Tenn. Jan. 4, 2011)).
See Pet’r’s Reply at 12 (citing Monroe v. FTS USA, LLC, No. 2:08-cv-02100-JTF-cgc, 2014
15
WL 4472720, at *9-10 (W.D. Tenn. July 28, 2014)).
12
-Paralegals: $10516
Having established the reasonable local rates for Petitioner’s counsel, the undersigned
must now determine whether the local rate or the forum rate should apply.
iii. The Local Rates Should Apply In This Case
It is important to note that McCulloch did nothing to change Avera and the requisite
Davis County exception analysis when determining attorneys’ fees. The Federal Circuit in Avera
concluded that the Davis County exception “represent[ed] a sound approach to setting”
reasonable hourly rates. See Avera, 515 F.3d at 1349. The Federal Circuit has reiterated
repeatedly that “Avera remains binding precedent” and “is thorough, well-reasoned, and has not
been undermined.” Masias, 634 F.3d at 1288; see also Hall, 640 F.3d at 1355 (“[U]ntil Avera is
overturned . . . it remains binding precedent.”). Therefore, when determining the difference
between locality rates and forum rates, it is important not to overlook Avera nor underestimate
the imperativeness of its principles.
One of the key principles from Avera is the often cited, controlling language, “very
significant difference;” and one of the more difficult analytical problems when interpreting Avera
is determining the boundaries of that language. Avera, 515 F.3d at 1349; see also Masias v.
Sec’y of HHS, No. 99697V, 2009 WL 1838979, at *25 (Fed. Cl. Spec. Mstr. June. 12, 2009)
(“What constitutes a ‘very significant difference’ is not defined.”), aff’d, 634 F.3d 1283 (Fed.
Cir. 2011); Garrison v. Sec’y of HHS, No. 14-762V, 2016 WL 3022076, at *7 (Fed. Cl. Spec.
Mstr. Apr. 29, 2015) (“[The Davis County and Avera] decisions do not provide guidance on
where to draw the line as to what constitutes a ‘very significant’ difference . . . .”), aff’d, 2016
WL 4784054, at *9 (Fed. Cl. Aug. 17, 2016). Even the Federal Circuit employed different
language combinations within Avera. See 515 F.3d at 1349-50 (using “substantially lower” and
“significantly higher” in context of Davis exception).17
To the undersigned, the question is not so much a semantic one—what is a very
significant difference—as it is a question of perspective—to whom is it very significantly
16
For the law clerks and paralegals, the undersigned used the $85 per hour rate from Heath,
multiplied by the 3.7 percent growth factor from 2009 to 2015, yielding $105 per hour.
17
The Supreme Court’s decision in Fox v. Vice, 563 U.S. 826, 838 (2011), is instructive here:
“[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The
essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing
perfection.”
13
different? In the context of one half of the lodestar equation, whether the hours an attorney
expended were reasonable, the Federal Circuit has directed that the perspective is that of a
putative client—would a client find the hours reasonable, and be willing to pay for them? See
Saxton, 3 F.3d at 1521. In the context of the other half of the lodestar equation then, e.g., rates,
that perspective seems appropriate, as well. Thus, the question in the present case becomes this:
would a putative client find a difference between forum rates and local rates of between 22 and
27 percent to be “very significant?” The undersigned finds that a reasonable putative client
would indeed find that difference to be very significant.
The undersigned also finds that, when one takes into account the cost of living difference
between the two fora, the distinction is warranted. For instance, a person who earns $100,000
per year in Washington, DC would need to earn only $57,561 per year in Memphis to maintain a
similar standard of living, which is a 42 percent difference.18 Furthermore, consider the
following comparison between Memphis and Cheyenne, Wyoming; a senior attorney earning
$200,000 per year in Memphis would need to earn $221,212 per year in Cheyenne to maintain a
similar standard of living—an 11 percent difference.19 This comparison is intriguing, given the
fact that the Federal Circuit has determined that attorneys in Cheyenne who work in the Vaccine
Program should be compensated using local rates instead of forum rates. See Avera, 515 F.3d at
1350 (awarding Cheyenne rates because DC rates were very significantly higher than Cheyenne
rates); Masias v. Sec’y of HHS, 634 F.3d 1283, 1286-88 (Fed. Cir. 2011) (awarding local rates to
Cheyenne-based attorney). Given the above comparisons, it is difficult to comprehend why
attorneys in Cheyenne should be awarded local rates while attorneys in Memphis should be
awarded forum rates.
Finally, awarding forum rates to Petitioner would result in a substantial “windfall” to
Petitioner’s counsel. The underlying principle in Davis County, which Avera reiterated, is to
avoid the “vast overcompensation” of counsel that would result in a “windfall.” See Davis Cty.,
169 F.3d at 759-60; Avera, 515 F.3d at 1349. As Respondent noted in her pleadings, as recently
as 2015, Petitioner’s counsel accepted and even requested rates of $300 per hour for MGM and
18
See Cost of Living Calculator, Bankrate,
http://www.bankrate.com/calculators/savings/movingcost-of-living-calculator.aspx (last visited
August 6, 2016); see also McCulloch, 2015 WL 5634323, at *10, n. 23 (relying on Bankrate’s
cost of living calculator).
19
See Cost of Living Calculator: Memphis, Tennessee to Cheyenne, Wyoming, Payscale
http://www.payscale.com/cost-of-living-calculator/Wyoming-
Cheyenne/TennesseeMemphis/Senior-Attorney (last visited on August 6, 2016); see also
McCulloch, 2015 WL 5634323, at *10, n. 24 (relying on calculator).
14
lesser rates for his associates. See Resp’t’s Sur-Reply at 9-10. The forum rates Petitioner has
requested for MGM, $410 per hour, would constitute a 37 percent rate increase to MGM, which
the undersigned finds would constitute the “vast overcompensation” discouraged by Davis
County and Avera.
For all of the reasons stated above, the undersigned finds that the local rates applicable in
the Memphis, Tennessee area, as enumerated earlier, should apply in this case,20 with one
addition: most of the factors considered when determining rates for attorneys’ fees are objective
and quantifiable—cost of living, fees awarded in other cases, etc. There are, however, factors
that are intangible and difficult to quantify, such as experience and leadership, that nevertheless
are clearly relevant to the question of what fees should be awarded in this case. Mr. McLaren is
a founding partner of his firm. He has over 40 years of practice experience, and has been
involved in the Vaccine Program since its inception. He brings to the Program not only his own
experience and acumen, but his leadership—he has brought associates from his firm into the
Program, associates like Mr. Cochran and Mr. Webb who themselves now have extensive
experience in the Program that they can use on behalf of their clients. While Doe was clearly not
the vehicle through which to include MGM’s experience in the fees calculation herein, his
experience and leadership nevertheless merits additional compensation. This is especially so
given the undersigned’s aforementioned observation that it is the client from whose perspective
an attorneys’ fees decision should be based—clients are particularly likely to value qualities like
experience and leadership. Accordingly, pursuant to the discretion afforded to the undersigned
to “adjust the product upward or downward based on other specific findings,” Masias, 634 F.3d
at 1286, the undersigned finds that it is appropriate to add a 1521 percent experience premium to
Mr. McLaren’s base local rate. Applying that premium to the rates determined in this case yields
a rate for MGM of $357 per hour for 2014, $370 per hour for 2015, and $384 per hour for 2016.
B. Travel
i. Hourly rate for travel time
Petitioner requested that the undersigned award her counsel the full hourly rate for all
travel time billed during the litigation. Mot. at 9. Petitioner noted that her counsel “makes it a
20
The 3.7 percent growth factor will be subtracted from those 2015 rates to determine 2014
rates, and added to those rates to determine rates applicable to services rendered in 2016.
21
The undersigned’s previous Decision awarded a 10 percent experience premium. However,
the posting of the Forum Rate Schedule and of decisions such as Dezern v. Sec’y of HHS, No.
13-643V, Decision on Fees and Costs, ECF No. 57, and Garrison, 2016 WL 3022076, (Fed. Cl.
Spec. Mstr. Apr. 29, 2015), aff’d, 2016 WL 4784054, at *9 (Fed. Cl. Aug. 17, 2016), led the
undersigned to conclude that 15 percent is more appropriate.
15
habit to work on the case while traveling when possible . . . and did so in this case where
indicated on the attached fee bill.” Id. In support of this assertion, Petitioner relies primarily on
the Federal Circuit’s decision in Crumbaker v. Merit Sys. Protection Bd., 781 F.2d 191 (Fed. Cir.
1986). Conversely, Respondent argued that Petitioner should not receive her full hourly rate for
time traveled. Resp’t’s Sur-Reply at 11-12.
Special masters have consistently awarded attorneys 50 percent of their hourly rate for
travel time. See Hocraffer, No. 99-533V, 2011 WL 3705153, at *24. At the same time, there is
no set standard for determining the appropriate rate for travel time, and special masters have
much discretion in determining “reasonable” rates. See Gruber, 91 Fed. Cl. at 791. Special
masters should assess each case “on its own merits.” Id.
In Crumbaker, the Federal Circuit reversed the Merit Board’s travel rate reduction and
awarded the attorney his full hourly rate for traveling. 781 F.2d at 193-94. The Court adopted
the Seventh Circuit’s reasoning in Henry v. Webermeier, 738 F.2d 188 (7th Cir. 1984),
essentially concluding that the appropriate billing rate probably was “the same billing rate as
would be appropriate for the other time the lawyers put in on the case.” Id. at 193. Of course, as
the Federal Circuit court noted, the client in Crumbaker “did not give wholesale approval to
compensation of full rate, attorney travel time in every circumstance.” See Gruber, 91 Fed. Cl.
at 790. Instead, the Court merely held that a “presumption” that “a reasonable attorney’s fee
includes reasonable travel time” exists. Crumbaker, 781 F.2d at 194. Further, the simple fact
that an attorney is traveling is insufficient to merit an award; a petitioner must submit adequate
documentation to show the specifics of the work performed. See Kuttner v. Sec’y of HHS, No.
06-195V, 2009 WL 256447, at *1, *10 (Fed. Cl. Spec. Mstr., Jan. 16, 2009); see also O’Neill,
2015 WL 2399211, at *8 (noting the attorneys’ documentation of travel was “generic and
unspecific”).
Here, Petitioner made two travel entries, one to Cincinnati, and one to Memphis on
return, that were charged at CJW’s hourly rate. See Mot. (Ex. 2) at 8. These entries, however,
are not specific enough to determine whether CJW performed work the entire time that he
traveled. Id. While Petitioner listed some specific tasks that CJW performed, the entries shed
little light on whether CJW actually performed these tasks during each phase of the trip.22 As a
result, an award of the full hourly rate for travel is not appropriate; rather, awarding half the
22
For instance, the first travel entry read as follows: “Travel to Cincinnati for Meeting with
Client and Review Materials, Medical Records, and Agenda While in Flight in Preparation for
Same.” See Mot. (Ex. 2) at 8. This line entry is especially generic and confusing, given that it
takes place over eight hours. It is unclear whether CJW actually performed this work during his
entire travel or merely while his plane was “in flight.”
16
hourly rate (50 percent) for time spent traveling is more reasonable given the facts at hand. See
Hocraffer, 2011 WL 3705153 at *24 (“Special masters consistently award compensation for
travel time at 50 percent of the billing rate in the Vaccine Program.”); see also Gruber, 91 Fed.
Cl. at 788 (“Even an automatic award may be too high . . . given that an attorney may use the
travel time to work on another matter . . . .”).23
ii. Expenses
Two of CJW’s travel expenses (specifically the meal at Ruth’s Steak House and the rental
vehicle upgrade), see Mot. (Ex. 2) at 43, have drawn Respondent’s criticism. While CJW was
not technically billing these expenses on a per diem basis, the undersigned understands the
practice of deferring lesser meal expenses in favor of one more extravagant one. While in the
future the undersigned suggests making the per diem argument more explicit on the face of the
fee application, the steak house meal is allowed. That being said, the undersigned sees no such
justification for the vehicle upgrade, and thus reduces that expense by the amount for the “rental
upgrade,” which results in $288.45 instead of $338.45. See id. at 47.
C. Reasonableness of Hours
Respondent argued that the number of hours that Petitioner billed for “simple” tasks
(reviewing Respondent’s notice of appearance and scheduling orders, for example) was
unreasonable, and thus, the overall number should be reduced. Resp’t’s Sur-Reply at 11-12. The
undersigned disagrees.
It is legitimate for Petitioner’s counsel to open and review these “simple filings” to which
Respondent referred. Further, the number of hours actually billed for these tasks was not
unreasonable.24 See Mot. (Ex. 2) at 6-7, 13 (billing 0.1 hours for these tasks). Ultimately, it is
within the undersigned’s discretion to determine whether the number of hours expended is
23
The undersigned does not find persuasive Respondent’s argument that he was performing
duplicative work while traveling between Cincinnati and Memphis.
24
To the extent Respondent’s argument on this issue is directed toward the hierarchical structure
of Petitioner’s counsel’s firm, which results in multiple attorneys billing on one case, the
undersigned notes that Respondent’s counsel’s firm is similarly structured, as are most firms
comprised of attorneys with varying levels of experience, and that the benefit to both the younger
attorneys, their clients, and the Program, from the oversight of these experienced attorneys,
generally more than offsets any duplicative billing. It certainly has done so in this case, where
Mr. McLaren’s share of the total attorneys’ hours expended was minimal (only 12.2 on the case
in chief including the attorneys’ fees application, and 1.2 on the supplemental fee request).
17
reasonable, based in part on previous experience. See Saxton, 3 F.3d at 1521. The undersigned
does so here and concludes that the number of hours expended is reasonable.
D. Supplemental Request
Petitioner also submitted a supplemental request for attorneys’ fees and costs on June, 30,
2016, to which Respondent did not object. See Pet’r’s Reply (Ex. 2). The undersigned finds that
the hours requested in the supplemental fees request are reasonable. Those fees are awarded
based on the hourly rates determined herein.
V. CONCLUSION
In sum, the table below includes the amounts of attorneys’ fees and expenses that the
undersigned awards Petitioner:
Attorneys’ Fees Requested $48,906.50
Reductions $ 7,894.65
Attorneys’ Fee Award $41,238.35
Attorneys’ Administrative Costs $199.29
(photocopies, postage, etc.) Requested
Reductions $0.00
Attorneys’ Administrative Costs Award $199.29
Attorneys’ Costs and Expenses Requested $7,453.78
Reductions $50.00
Attorneys’ Costs and Expenses Award $7,403.78
Supplemental Fees and Costs Requested $7,279.30
Supplemental Fees and Costs Award $6,007.90
Total Attorneys’ Fees and Costs $54,849.32
Awarded
Accordingly, pursuant to 42 U.S.C. ' 300aa-15(e), the undersigned hereby awards
the amount of $54,849.32, in the form of a check made payable jointly to Petitioner and
18
Petitioner's counsel, Black McLaren Jones Ryland & Griffee. In the absence of a motion for
review filed pursuant to RFCF Appendix B, the clerk of the court is directed to enter judgment
herewith.25
IT IS SO ORDERED.
s/Lisa Hamilton-Fieldman
Lisa Hamilton-Fieldman
Special Master
25
Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing
notice renouncing the right to seek review of a judge of the United States Court of Federal
Claims.
19