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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-55V
(Not to be Published)
*********************
* Special Master Corcoran
MEGHAN HEPLER, *
*
Petitioner, * Filed: June 8, 2016
*
v. *
* Decision; Attorney’s Fees and
SECRETARY OF HEALTH * Costs; Reconsideration.
AND HUMAN SERVICES, *
*
Respondent. *
*
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Carol L. Gallagher, Carol L. Gallagher, Esquire, LLC, Linwood, NJ, for Petitioner.
Lisa A. Watts, U.S. Dep’t of Justice, Washington, DC, for Respondent.
ORDER DENYING MOTION FOR RECONSIDERATION OF
ATTORNEY’S FEES AND COSTS DECISION1
On January 24, 2014, Meghan Hepler filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 ECF No. 1. On May 18,
2016, the parties filed a stipulation proposing an award of compensation. ECF No. 54. I
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Because this ruling contains a reasoned explanation for my actions in this case, I will post it on the United States
Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the ruling’s inclusion of certain kinds
of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which 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). Otherwise, the whole ruling will be
available to the public. Id.
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The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
subsequently issued a decision on May 19, 2016, concluding that the stipulation was reasonable,
and therefore adopting it as my decision awarding Petitioner damages. ECF No. 56.
Because Petitioner prevailed in the matter, she was entitled to an award of attorney’s fees
and costs, and to that end filed an application requesting the total sum of $31,539.43, plus $750.00
in out-of-pocket expenses payable directly to Petitioner. ECF No. 55. I granted Petitioner’s
Application in part, by Decision dated June 6, 2016 (ECF No. 62), reducing the amount of
attorney’s fees and costs awarded to $22,469.33. Ms. Hepler’s Fees Application had requested an
hourly rate ($350 per hour) that was contrary to a determination I had made just six months earlier,
in a case entitled Gonzalez v. Sec’y of Health & Human Servs., No. 14-1072V, 2015 WL 10435023,
at *8-12 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In Gonzalez, I had specifically found that Carol
Gallagher – the same lawyer representing Ms. Hepler in the present matter – was not entitled to
the higher “forum rate” for Vaccine Program practitioners, and instead awarded her fees based on
an hourly rate determination of $315, consistent with her geographic area of practice.
Petitioner has now moved for reconsideration of my fees decision, pursuant to Vaccine
Rule 10(e). Motion for Reconsideration, dated June 7, 2016 (ECF No. 63). She argues that the
requested rate is consistent with the range established for experienced attorneys like Ms. Gallagher,
as set forth in a recent decision, McCulloch v. Sec’y of Health & Human Servs., No. 09-293V,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). She also cites to an unpublished fees
decision involving Ms. Gallagher in which the Chief Special Master awarded her fees purportedly
based upon this $350 hourly rate, Major v. Sec’y of Health & Human Servs., No. 15-1449V, slip
op. (Fed. Cl. Spec. Mstr. May 10, 2016). And she notes that Respondent did not offer an objection
to the requested $350 hourly rate.
Petitioner’s arguments are unpersuasive. First, it is well understood in the Vaccine Program
that the decisions of other special masters are not binding in other cases. Guillory v. Sec’y of Health
& Human Servs., 59 Fed. Cl. 121, 124 (2003), aff’d, 104 F. App’x 712 (Fed. Cir. 2004).
Accordingly, the fact that an attorney might have been paid more in a different case does not
compel the same result herein. Nor am I prevented, in the exercise of my discretion, from making
sua sponte adjustments to a fees request simply because Respondent does not raise objections.
Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (2009).
Second, the authorities referenced by Petitioner do not undercut my finding herein that,
consistent with Gonzalez, Ms. Gallagher should not receive an in-forum rate. McCulloch involved
setting hourly rates for attorneys that were unquestionably practicing “in forum,” and therefore
were not subject to the exception3 applied when a Program practitioner performs the bulk of her
3
Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008) (citing Davis Cnty. Solid Waste
Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. E.P.A., 169 F.3d 755 (D.D.C. Feb. 26, 1999)).
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work in a location in which local rates are substantially below the rates applied to the Court of
Federal Claims’ Washington, DC forum. In Gonzalez, however, I determined (relying in part on
McCulloch, which was decided prior to Gonzalez) that this exception did apply to Ms. Gallagher,
given the Southern New Jersey forum in which she practices. Accordingly, the rate ranges
established in McCulloch are not relevant.
The Major decision is similarly inapposite. There, fees were awarded based on a request
that Respondent expressly did not oppose. Major, No. 15-1449V, at 2. In addition, the decision
contains no discussion of what the proper rate should be for Ms. Gallagher. It thus does not set
forth a reasoned analysis for why a higher rate is appropriate for her.
As I noted in my initial fees decision, Petitioner’s Fees Application made no mention of
my earlier determination in Gonzalez – which analyzed the proper rate to be paid Ms. Gallagher
in great detail. Thus, Petitioner did not argue that Gonzalez was in error or should be disregarded
herein. Petitioner’s Reconsideration Motion does offer assertions about Ms. Gallagher’s skill and
experience, as well as the nature of the work performed in this matter. However true those
assertions may be, they do not bear on whether the Davis exception applies to her, as I already
determined in Gonzalez.
I therefore find (in exercising my discretion) that the interests of justice do not compel
revision of my original Fees Decision. Vaccine Rule 10(e)(3); R.K. v. Sec’y of Health & Human
Servs., No. 03-632V, 2010 WL 5572074, at *3 (Fed. Cl. Spec. Mstr. Jan. 10, 2011) (within the
special master’s discretion to decide what the “interest of justice” is in a given case in determining
whether to grant motion for reconsideration).
Accordingly, the Motion for Reconsideration is DENIED.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Special Master
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