Raymo v. Secretary of Health and Human Services , 2016 U.S. Claims LEXIS 1950 ( 2016 )

In the United States Court of Federal Claims
No. 11-654V
(Filed: December 14, 2016)
(Reissued: December 29, 2016)
************************************* )
KEVIN RAYMO and HEATHER ) Attorneys’ fees and costs in a vaccine
RAYMO, legal representatives of a minor ) case; lodestar approach applied to local
child, H.T.R., ) rates for fees in Louisiana and
) Arkansas; reduction for attorneys’ time
Petitioners, ) spent on paralegal and administrative
) tasks; reasonable rates for medical
v. ) experts; documentation of costs
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
************************************* )
Andrew J. Quackenbos, Domengeaux Wright Roy Edwards & Colomb, LLC, Lafayette,
Louisiana, for petitioners.
Claudia B. Gangi, Senior Trial Attorney, Torts Branch, Civil Division, United States
Department of Justice, Washington, D.C., for respondent. With her on the briefs were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, C. Salvatore D’Alessio,
Acting Director, Catharine E. Reeves, Acting Deputy Director, and Gabrielle M. Fielding,
Assistant Director, Torts Branch, Civil Division, United States Department of Justice,
Washington, D.C.
OPINION AND ORDER1
LETTOW, Judge.
Kevin and Heather Raymo, acting on behalf of their minor child, H.T.R., and through
their attorneys, request that this court review the chief special master’s decision awarding
attorneys’ fees and costs. See Pet’rs’ Mem. of Objs. in Support of Mot. for Review (“Pet’rs’
Mem.”), ECF No. 125-1. The case was initiated on October 11, 2011, when Kevin and Heather
Raymo filed a petition on behalf of H.T.R., alleging that H.T.R. developed transverse myelitis as
1
In accord with the Rules of the Court of Federal Claims (“RCFC”), App. B (“Vaccine
Rules”), Rule 18(b), this opinion and order is being initially filed under seal. By rule, the parties
have fourteen days in which to propose redactions.
a result of certain vaccines she received. Raymo v. Sec’y of Health & Human Servs., No. 11-
654V, slip op. at 1-2 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (“Fees Decision”). On February 24,
2014, then-Chief Special Master Vowell ruled that petitioners were entitled to compensation for
H.T.R.’s injuries. Raymo v. Sec’y of Health & Human Servs., No. 11-654V, 2014 WL 1092274
(Fed. Cl. Spec. Mstr. Feb. 24, 2014).
On July 15, 2016, Chief Special Master Dorsey2 awarded petitioners $354,809.31 in
attorneys’ fees and costs, which was significantly less than the amount requested by petitioners,
$731,251.40. Fees Decision at 3. Petitioners filed a motion for reconsideration on August 5,
2016, relating specifically to costs for work performed by petitioners’ economist. Pet’rs’ Mot.
for Recons. Regarding Decision on Att’ys’ Fees and Costs (“Pet’rs’ Mot. for Recons.”), ECF No.
113. Chief Special Master Dorsey granted the motion and awarded petitioners an additional
$14,144.50 to reflect the economist’s costs. Order Granting Pet’rs’ Mot. for Recons. (Oct. 26,
2016), ECF No. 123. As a result, Chief Special Master Dorsey withdrew the decision issued on
July 15, 2016 and issued a new decision on November 2, 2016, awarding petitioners $368,953.81
in attorneys’ fees and costs. Fees Decision at 3. Petitioners filed a motion for review of the
chief special master’s decision regarding attorneys’ fees and costs on November 10, 2016, which
is now pending before this court.3 For the reasons stated, the court denies petitioners’ motion for
review and affirms the chief special master’s decision on attorneys’ fees and costs.
BACKGROUND
Petitioners, Kevin and Heather Raymo, are the legal representatives of their minor
daughter, H.T.R. Fees Decision at 1. Petitioners allege that H.T.R. developed transverse
myelitis due to her receipt in October 2010 of vaccinations for human papillomavirus virus,
meningococcus, hepatitis A, diphtheria, tetanus and pertussis. Raymo, 2014 WL 1092274, at *1.
H.T.R. was eleven years old at the time of the vaccinations. Id. at *2. As a result, H.T.R. is
completely paralyzed from the waist down. Id. at *2, *5.
A. Procedural History
2
The case was reassigned from former Chief Special Master Vowell to Chief Special
Master Dorsey on September 15, 2015. Notice of Reassignment, ECF No. 98.
3
Petitioners had filed a motion for review of the chief special master’s initial decision on
August 15, 2016. See Pet’rs’ Mot. for Review of Decision on Att’ys’ Fees and Costs, ECF No.
114. That motion for review was filed before the chief special master resolved the motion for
reconsideration. After the court remanded the case to the chief special master for action on the
request for reconsideration and the chief special master granted relief, petitioners filed the
motion for review that is now before this court.
2
Petitioners filed this suit on October 11, 2011, pursuant to the National Vaccine Injury
Compensation Program. Fees Decision at 1.4 Then-Chief Special Master Vowell held an
entitlement hearing in November 2012, and determined that petitioners were entitled to
compensation on February 24, 2014. Raymo, 2014 WL 1092274, at *5, *23. Respondent
(“government”) did not concede that the vaccines caused H.T.R.’s injuries, but did agree to
compensate petitioners. See Stipulation (Nov. 5, 2015), ECF No. 100. Chief Special Master
Dorsey accepted the stipulation and awarded compensation accordingly. See Decision on Joint
Stipulation (Nov. 5, 2015), ECF No. 101.
On March 4, 2016, petitioners requested $532,976.90 in attorneys’ fees and $195,724.50
in costs, for a total of $728,701.40. Pet’rs’ Mot. for Fees and Costs (Mar. 4, 2016), ECF No.
107.5 The government responded that a reasonable fees and costs award “would fall between
$97,000.00 to $120,000.00.” Resp’t’s Resp. to Pet’rs’ Appl. for Att’ys’ Fees and Costs at 3
(March 15, 2016), ECF No. 108. Petitioners subsequently requested an additional $2,550.00 to
account for attorneys’ fees accumulated in 2016. Pet’rs’ Suppl. Mot. for Fees and Costs (May
17, 2016), ECF No. 110. On July 15, 2016, Chief Special Master Dorsey awarded petitioners
$354,809.31 in attorneys’ fees and costs. Fees Decision at 3. Petitioners filed a motion for
reconsideration on August 5, 2016, Pet’rs’ Mot. for Recons., and a motion for review on August
15, 2016, Pet’rs’ Mot. for Review of Decision on Att’ys’ Fees and Costs, ECF No. 114. The
motion was fully briefed and a hearing was held on September 30, 2016.
On October 6, 2016, the court remanded the case to Chief Special Master Dorsey for the
limited purpose of ruling on petitioners’ motion for reconsideration. See Order of October 6,
2016, ECF No. 119. Petitioners’ motion for reconsideration related solely to the costs for
petitioners’ economist, Malcolm M. Dienes, LLC. See Pet’rs’ Mot. for Recons. Chief Special
Master Dorsey granted the motion, which resulted in petitioners receiving an additional
$14,144.50 in costs for Dienes, LLC. See Order Granting Pet’rs’ Mot. for Recons. Chief Special
Master Dorsey issued a new decision on November 2, 2016 that awarded petitioners
$368,953.81, comprised of $269,358.35 in attorneys’ fees and $99,595.46 in costs. Fees
Decision at 32-33. Petitioners filed a motion for review of that decision on November 10, 2016.
Pet’rs’ Mem. The government filed its response to petitioners’ motion for review on December
8, 2016. Resp’t’s Resp. to Mot. for Review (“Resp’t’s Opp’n”), ECF No. 126.
B. Chief Special Master’s Decision on Attorneys’ Fees and Costs
1. Attorneys’ hourly rates.
The chief special master relied upon the lodestar approach to determine reasonable
attorneys’ fees. Fees Decision at 5 (citing Avera v. Sec’y of Health & Human Servs., 515 F.3d
4
The program was instituted by and under the National Childhood Vaccine Injury Act of
1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-1 to
300aa-34) (“Vaccine Act” or “Act”).
5
Petitioners put forward a request for $531,661.90, but, as the chief special master
correctly noted, the requested attorneys’ fees in fact totaled $532,976.90. Fees Decision at 2 n.4.
3
1343, 1349 (Fed. Cir. 2008)). Under the lodestar approach, the court or special master begins by
“multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.” Avera, 515 F.3d at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Next, the court or special master “may then make an upward or downward departure to the fee
award based on other specific findings.” Id. at 1348. Here, the chief special master applied local
Louisiana and Arkansas billing rates, rather than Washington, D.C. forum rates, to determine the
attorneys’ reasonable hourly rates. Fees Decision at 6-7. Though the forum rate typically
controls, in this instance the chief special master applied local rates under the so-called Davis
County exception because nearly all of the legal work occurred in Louisiana and Arkansas, and
the chief special master found a “very significant” difference between local and forum rates. Id.
(applying Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States
Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). To determine reasonable local
attorneys’ rates in Louisiana, the chief special master looked to Mooney v. Sec’y of Health &
Human Servs., No. 05-266V, 2014 WL 7715158 (Fed. Cl. Spec. Mstr. Dec. 29, 2014), a vaccine
case awarding hourly attorneys’ rates in Louisiana,6 as fitted into the framework of McCulloch v.
Sec’y of Health and Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept.
1, 2015), recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). Fees
Decision at 8-10.7
Three law firms participated in the case, Andry Law Group, Domengeaux Wright, and
Nixon & Light. Fees Decision at 6. Petitioners requested attorneys’ fees for a total of five
attorneys, as well as fees for two paralegals. Id. at 6-12.8 Because both Andry Law Group and
Domengeaux Wright were located in Louisiana and performed almost all of the legal work for
this case in Louisiana, the chief special master applied Mooney and McCulloch to determine
reasonable hourly rates in Louisiana. Id. at 7-11.9 As a starting point, the chief special master
noted that in Mooney an attorney with fifteen years of legal experience was awarded an hourly
6
The chief special master commented that “[a]s opposed to [petitioners’ cited case of
Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830 (E.D. La. 2007)], Mooney dealt with local
rates specifically for vaccine litigation, and was a 2014, rather than 2007, decision. The
undersigned finds the rates in Mooney are a more useful reference point than the rates stated in
Turner. . . .” Fees Decision at 8 (emphasis in original).
7
McCulloch set forth a framework by which attorneys’ hourly rates were determined by
years of legal experience. 2015 WL 5634323, at *19; Fees Decision at 9-10. The “experience
categories” consisted of attorneys with less than four years, four to seven years, eight to ten
years, eleven to nineteen years, and more than twenty years of experience. Fees Decision at 9
n.11 (citing McCulloch, 2015 WL 5634323, at *19).
8
The chief special master allowed hourly rates of $100 for both paralegals, as requested.
Fees Decision at 10, 11.
9
The chief special master applied the McCulloch framework to determine reasonable
hourly rates in Arkansas, where John B. Buzbee of Nixon & Light was located. Fees Decision at
12. The chief special master allowed a $200 hourly rate for Mr. Buzbee, as requested. Id.
4
rate of $275 for vaccine work performed in Louisiana. Id. at 8 (citing Mooney, 2014 WL
7715158, at *9). Under the McCulloch framework, hourly rates were then adjusted upward or
downward for the attorneys in this case based upon years of legal experience. Id. at 9-10 (citing
McCulloch, 2015 WL 5634323, at *19).
Using this framework, the chief special master allowed a $325 hourly rate for attorney
Jonathan B. Andry and a $200 hourly rate for attorney Michelle Purchner Cumberland of Andry
Law Group. Fees Decision at 10.10 She allowed a $200 hourly rate for attorney Andrew J.
Quackenbos of Domengeaux Wright for his work between 2013 and 2015, and a $250 hourly
rate for his work in 2016 to reflect his increased experience. Id. at 11.11 The chief special master
allowed a $325 rate for attorney Bob F. Wright of Domengeaux Wright, rather than the $425
hourly rate requested. Id. at 10-11. Because Mr. Wright had fifty-seven years of legal
experience, he fell within the highest McCulloch bracket and therefore warranted an increased
hourly rate compared to the $275 awarded in Mooney for an attorney with fifteen years of legal
experience. Id. at 8, 11. However, the chief special master determined that a $50 rate increase
was appropriate, as opposed to anything more, because the case “appear[ed]” to be Mr. Wright’s
first in the Vaccine Program, and because it was “difficult to determine [Mr. Wright’s] reputation
and skill level as compared to other petitioners in the [Vaccine] Program.” Id. at 11.
2. Reduction of attorneys’ hours requested.
In addition to establishing reasonable hourly rates, the chief special master also reduced
the number of hours requested by the attorneys.
First, the chief special master did not allow attorneys’ fees for administrative work. Fees
Decision at 12-13 (citing Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Mostovoy v.
Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb.
4, 2016)). In reviewing the requested hours for petitioners’ attorneys, the chief special master
found numerous instances of administrative work. For example, Mr. Andry of Andry Law
Group billed an hour “for correspondence with respondent’s counsel about scheduling a
conference,” and Ms. Cumberland and Ms. Lobrano of Andry Law Group repeatedly billed for
tasks related to scheduling or coordinating travel. Id. at 13-14. Additionally, the chief special
master found that Mr. Wright, Mr. Quackenbos, and Ms. Pelletier of Domengeaux Wright billed
for tasks such as reviewing a letter to excuse H.T.R. from school, scheduling a status conference,
and scheduling trips. Id. at 15-16. Accordingly, the chief special master reduced Mr. Andry’s
time by 20.05 hours, Ms. Cumberland’s time by 22.45 hours, and Ms. Lobrano’s time by 13.80
hours. Id. at 14. The chief special master also reduced Mr. Wright’s time by 7.60 hours, Mr.
Quackenbos’ time by 1.30 hours, and Ms. Pelletier’s time by 1.50 hours. Id. at 16.
10
Mr. Andry and Ms. Cumberland requested $350 and $250 hourly rates, respectively.
Fees Decision at 7.
11
Mr. Quackenbos requested a $250 hourly rate for all of his time spent on the case. Fees
Decision at 10.
5
Second, the chief special master allowed attorneys’ fees for paralegal-level work, but
only at a paralegal rate. Fees Decision at 13 (citing Doe ex rel. Estate of Doe v. Sec’y of Health
and Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29,
2010) (in turn citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989))). For example, she found
that Mr. Andry and Ms. Cumberland of Andry Law Group billed for time spent filing medical
records and exhibits, as well as organizing binders. Id. at 14-15. Mr. Wright of Domengeaux
Wright billed for time spent reviewing an e-mail from Andry Law Group regarding preparations
and arrangements with the court for an upcoming hearing, as well as reviewing and forwarding
an e-mail to co-counsel. Id. at 16. Accordingly, the chief special master only allowed a $100
paralegal hourly rate for 6 hours expended by Mr. Andry, 41.50 hours by Ms. Cumberland, and
0.40 hours by Mr. Wright. Id. at 15-16.
Third, the chief special master did not allow attorneys’ fees related to admission to the
United States Court of Federal Claims Bar. Fees Decision at 16 (citing Estate of Oswalt v. Sec’y
of Health & Human Servs., No. 03-2153V, 2011 WL 2149932 (Fed. Cl. Spec. Mstr. May 2,
2011); Ceballos ex rel. Ceballos v. Sec’y of Health & Human Servs., No. 99-97V, 2004 WL
784910 (Fed. Cl. Spec. Mstr. Mar. 25, 2004); Velting v. Sec’y of Health & Human Servs., No.
90-1432V, 1996 WL 937626 (Fed. Cl. Spec. Mstr. Sept. 24, 1996)). As a result, the chief special
master reduced Mr. Andry’s time by 3.60 hours, and Ms. Lobrano’s time by 11.06 hours. Id. at
17.
Fourth, for time spent traveling, the chief special master reduced petitioners’ attorneys’
hourly rates by 50 percent. Fees Decision at 17 (citing Rodriguez v. Sec’y of Health & Human
Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. July 27, 2009), review
denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011); Carter v. Sec’y of Health
& Human Servs., No. 04-1500V, 2007 WL 2241877 (Fed. Cl. Spec. Mstr. July 13, 2007);
Scoutto v. Sec’y of Health & Human Servs., No. 90-3576V, 1997 WL 588954 (Fed. Cl. Spec.
Mstr. Sept. 5, 1997)). Because petitioners’ attorneys gave “no indication” that they performed
legal work while traveling, the chief special master reduced the attorneys’ requested fees during
travel by 50 percent. Id.
Finally, the chief special master did not allow attorneys’ fees for time spent researching
civil remedies, Fees Decision at 18 (citing 42 U.S.C. § 300aa-15(e)(1)(A), (B); Krause v. Sec’y
of Health & Human Servs., No. 01-93V, 2012 WL 4477431 (Fed. Cl. Spec. Mstr. June 20,
2012)), or time spent learning fundamental legal concepts about the Vaccine Program, id. (citing
Matthews v. Sec’y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl.
Spec. Mstr. Apr. 18, 2016); Calise v. Sec’y of Health & Human Servs., No. 08-865V, 2011 WL
2444810, at *5 (Fed. Cl. Spec. Mstr. June 13, 2011); Carter, 2007 WL 2241877, at *5). In
evaluating the attorneys’ fees requested, the chief special master found instances of billing
related to civil remedies or fundamental concepts about the Vaccine Program. Id. at 18-20. For
example, Mr. Andry and Ms. Cumberland of Andry Law Group billed for research related to
filing a claim in Arkansas and learning about proper procedure in vaccine petitions. Id. at 18-19.
Similarly, Mr. Wright and Mr. Quackenbos billed for research related to an Arkansas claim and
“jurisprudence regarding [the] [V]accine [A]ct and rights of litigants.” Id. at 19-20.
Accordingly, the chief special master reduced Mr. Andry’s time by 28.30 hours, Ms.
6
Cumberland’s time by 23.70 hours, Mr. Wright’s time by 3.80 hours, and Mr. Quackenbos’ time
by 5.90 hours. Id. at 19-20.
3. Reduction of total attorneys’ fees requested due to excessive and duplicative billing.
In addition to reducing the number of billable hours, the chief special master determined
that excessive and duplicative billing warranted a 40 percent reduction in fees requested by
Andry Law Group, and a 20 percent reduction in fees requested by Domengeaux Wright. Fees
Decision at 20-24. In explaining her decision, the chief special master noted concerns about
billing by Andry Law Group, including: a single attorney billing for a single task on multiple
occasions, multiple attorneys billing for a single task, attorneys billing excessively for intraoffice
communications, attorneys billing for excessive time, and attorneys entering erroneous billing
entries. Id. at 21-23. The chief special master also noted her view that attorneys with
Domengeaux Wright had billed excessively for interoffice communications between
Domengeaux Wright and the Andry Law Group, and that the attorneys had billed excessively for
intrafirm communications and for work that was also performed by Andry Law Group. Id. at 23-
24.
4. Costs.
First, in addressing costs, the chief special master only allowed petitioners to recover for
costs related to petitioners’ expert Dr. Marcel Kinsbourne at $400 per hour, rather than the
requested $500 per hour. Fees Decision at 24-26.12 The chief special master noted that Dr.
Kinsbourne had received $500 per hour in a few previous vaccine cases, but less than $500 in
others. Compare Simon v. Sec’y of Health & Human Servs., No. 05-941V, 2008 WL 623833, at
*6-8 (Fed. Cl. Spec. Mstr. Feb. 21, 2008) (Dr. Kinsbourne awarded $500 per hour), with Faoro
v. Sec’y of Health & Human Servs., No. 10-704V, 2014 WL 5654330, at *3-4 (Fed. Cl. Spec.
Mstr. Oct. 15, 2014) (Dr. Kinsbourne awarded $400 per hour). Here, the chief special master
found $400 per hour to be reasonable because, unlike in Simon where Dr. Kinsbourne had
significant experience with the alleged injuries at issue, Dr. Kinsbourne did not have the same
level of experience in transverse myelopathies, and former Chief Special Master Vowell found
that Dr. Kinsbourne was “not an ideal expert witness.” Fees Decision at 25; Raymo, 2014 WL
1092274, at *18.
Second, the chief special master did not allow petitioners to recover for any costs related
to petitioners’ expert Dr. Daniel Becker, on the grounds that Dr. Becker’s bills were not
sufficiently specific, he failed to provide any records for certain fees, he had been found by a
preponderance of the evidence to have plagiarized his expert report, and his opinion was not
relied upon by the Chief Special Master Vowell in making a determination in the case. See Fees
Decision at 26-28; Raymo, 2014 WL 1092274, at *13-14.
Third, the chief special master reduced the requested costs for petitioners’ life care
planners by 50 percent. Fees Decision at 28-29. The chief special master determined that the
billing statements for the life care planners failed to adequately explain the hours spent on the
12
The chief special master also reduced costs for time spent traveling by 50 percent. Fees
Decision at 24-25.
7
case, the rate charged, or the work performed. Id. at 28. Additionally, the chief special master
found the hourly rates requested, which were as high as $825 per hour for one planner and $750
per hour for another, to be excessive. Id. at 28-29.
Fourth, the chief special master awarded petitioners $19,892, the full amount requested,
in costs for petitioners’ economist, Malcolm M. Dienes, LLC. Fees Decision at 29-30. The
chief special master had initially declined to award $14,144.50 of those costs due to lack of
billing documentation, but petitioners later provided sufficient supplemental documentation with
their motion for reconsideration, after which the chief special master granted the full amount of
the costs sought. Order Granting Pet’rs’ Mot. for Recons.
Fifth, the chief special master did not grant $250 in requested costs for a nurse consultant
due to lack of documentation, and also reduced the nurse consultant’s hourly rate for travel by 50
percent. Fees Decision at 30.
Sixth, the chief special master did not allow a requested $36.50 in medical bills due to
lack of documentation. Fees Decision at 30-31.
Seventh, the chief special master found petitioners’ requested travel expenses to be
excessive. Fees Decision at 31. Specifically, the chief special master reduced petitioners’
requested costs for a charter flight and transportation by “Little Rock Limousine” by 50 percent.
Id.
Eighth, the chief special master did not allow compensation for expenses related to an
“Am. Medical Association Subscription” and a certificate of good standing from the Supreme
Court of Louisiana. Fees Decision at 31 (citing Rodriguez, 2009 WL 2568468, at *23; Ceballos,
2004 WL 784910).
Finally, the chief special master did not award any of the $29,554.58 petitioners
requested for the interest accumulated on loans that Heather Raymo and Domengeaux Wright
jointly obtained to finance the case. Fees Decision at 31.
C. Motion for Review
Petitioners’ motion for review challenges several of the chief special master’s
determinations regarding the award of fees and costs. First, petitioners contest the attorneys’
fees awarded by the chief special master. Petitioners argue that Mr. Wright should have been
compensated at $425 per hour, not $325 per hour, to properly reflect his fifty-seven years of
legal experience and reputation in the legal community. Pet’rs’ Mem. at 11-12.13 Additionally,
petitioners challenge the chief special master’s decision to curtail the attorneys’ billable hours as
“mechanical and arbitrary.” Id. at 6-9. Petitioners also seek reversal of the chief special
master’s decision to reduce Andry Law Group’s fees by 40 percent and Domengeaux Wright’s
13
Petitioners do not challenge the reduced hourly rates for the other attorneys. Pet’rs’
Mem. at 11.
8
fees by 20 percent on the grounds that these “blanket cuts” were arbitrary and unreasonable,
arguing that the chief special master improperly inserted her own judgment regarding how the
attorneys conducted or should have conducted the litigation. Id. at 9-10. Petitioners support this
contention by asserting that “in complex matters, the work of multiple attorneys is both
reasonable and expected.” Id. at 9. Second, petitioners challenge the costs awarded by the chief
special master. Petitioners argue that the chief special master should have compensated
petitioners for costs related to expert Dr. Kinsbourne at $500 per hour, not $400 per hour, and
that some compensation should have been awarded for costs related to expert Dr. Becker. Id. at
12-15. Petitioners also contest the chief special master’s reduction of costs related to the life
care planners, reduction of travel expenses, and exclusion of interest accumulated on the money
petitioners borrowed to finance the suit. Id. at 15-18.
Overall, petitioners argue that Chief Special Master Dorsey should not be afforded the
discretion or deference traditionally afforded to a special master in determinations of fees
because Chief Special Master Dorsey was not assigned to the case during the proceedings on
entitlement and was assigned to preside only after the parties had reached a settlement on
compensation. Hr’g Tr. 7:19 to 9:2 (Sept. 30, 2016). The government responds by asserting that
the chief special master properly considered all relevant factors in reaching a reasonable
attorneys’ fees and costs determination, and that the decision should be affirmed. Resp’t’s
Opp’n at 1-2.
STANDARD OF REVIEW
This court has jurisdiction to review a chief special master’s decision under the Vaccine
Act and may take one of the following actions upon review of the decision:
(A) uphold the findings of fact and conclusions of law of the [chief] special master
and sustain the [chief] special master’s decision,
(B) set aside any findings of fact or conclusion of law of the [chief] special master
found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue its own findings of fact and conclusions of law,
or
(C) remand the petition to the [chief] special master for further action in accordance
with the court’s direction.
42 U.S.C. § 300aa-12(e)(2); see Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 91
(2016).
A special master’s determinations of law are reviewed de novo, findings of fact are
reviewed for clear error, and discretionary rulings are reviewed for abuse of discretion. Hall v.
Sec’y of Health & Human Servs., 640 F.3d 1351, 1354-55 (Fed. Cir. 2011) (citations omitted).
The award or denial of attorneys’ fees and costs is a discretionary ruling that is reviewed under
the abuse of discretion standard. Saxton ex rel. Saxton v. Sec’y of Dep’t of Health & Human
Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); Graham v. Sec’y of Health & Human Servs., 124
9
Fed. Cl. 574, 578 (2015) (citations omitted). This court will only find an abuse of discretion
when, as set out by the Federal Circuit in other contexts, the special master’s decision “(1) is
clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3)
rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on
which the [special master] could rationally base [his] decision.” Davis v. Sec’y of Health &
Human Servs., 105 Fed. Cl. 627, 633 (2012) (quoting Ninestar Tech. Co. v. International Trade
Comm’n, 667 F.3d 1373, 1379 (Fed. Cir. 2012)) (alterations in original).
This deferential standard “is not a rubber stamp.” Davis, 105 Fed. Cl. at 633 (citations
omitted). The special master must provide sufficient findings and analysis to ensure that a
reviewing court can adequately determine whether an abuse of discretion has occurred. Caves v.
Sec’y of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013) (citations omitted). If, however,
“the special master has considered the relevant evidence of record, drawn plausible inferences
and articulated a rational basis for the decision, reversible error will be extremely difficult to
demonstrate.” Hall, 640 F.3d at 1355 (quoting Hines v. Sec’y of Health & Human Servs., 940
F.2d 1518, 1528 (Fed. Cir. 1991)). Additionally, a special master is permitted to rely on his or
her own experiences within the Vaccine Program when awarding reasonable attorneys’ fees and
costs. Saxton, 3 F.3d at 1521; Caves, 111 Fed. Cl. at 779 (citations omitted).
ANALYSIS
The Vaccine Act was enacted to implement a “no-fault compensation program” that
would “work faster and with greater ease than the civil tort system.” Bruesewitz v. Wyeth LLC,
562 U.S. 223, 228 (2011) (quoting Shalala v. Whitecotton, 514 U.S. 268, 269 (1995)). The Act
prohibits attorneys from charging any fee for services in connection with a vaccine injury
petition. Sebelius v. Cloer, __U.S. __, __, 133 S. Ct. 1886, 1891 (2013) (citing 42 U.S.C. §
300aa-15(e)(3)). Instead, the special master or court awards attorneys’ fees and costs, and the
award is paid from the federal vaccine trust fund. 42 U.S.C. § 300aa-15(e)(1), (f)(4), (i)(2);
Rehn, 126 Fed. Cl. at 91. If a petitioner prevails under the Act, the petitioner is automatically
entitled to “reasonable attorneys’ fees” and “other costs.” 42 U.S.C. § 300aa-15(e)(1)(A), (B);
Davis, 105 Fed. Cl. at 634. If the petitioner loses, the presiding special master may award
reasonable attorneys’ fees and costs if the petition was brought in good faith and upon a
reasonable basis. Cloer v Sec’y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir.
2012), aff’d sub nom. Sebelius v. Cloer, ___ U.S. ___, 133 S. Ct. 1886; Rehn, 126 Fed. Cl. at 91
(quoting 42 U.S.C. § 300aa-15(e)(1)).
Petitioners bear the burden of showing that the requested attorneys’ fees and costs are
reasonable. Caves, 111 Fed. Cl. at 782; Sabella v. Sec’y of Dep’t of Health & Human Servs., 86
Fed. Cl. 201, 215 (2009). As a general rule, “[h]ours that are not properly billed to one’s client
also are not properly billed to one’s adversary pursuant to statutory authority.” Morse v. Sec’y of
Health & Human Servs., 93 Fed. Cl. 780, 790 (2010) (quoting Saxton, 3 F.3d at 1521) (emphasis
in original).
A. Attorneys’ Fees
1. Reducing Mr. Wright’s hourly rate.
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The most senior attorney for petitioners, Mr. Bob F. Wright, had over 50 years of
experience in legal practice and litigation but no prior work on vaccine cases. The chief special
master began with a baseline rate of $275 per hour for an attorney with fifteen years of
experience, as set forth in Mooney, 2014 WL 7715158, at *9, and then increased that rate by $50
per hour to reflect Mr. Wright’s additional experience, per the guidelines set forth in McCulloch,
2015 WL 5634323, at *10. Fees Decision at 10-11.
Petitioners argue that the chief special master failed to consider two of the McCulloch
factors in determining an hourly rate for Mr. Wright: overall legal experience and reputation in
the community. Pet’rs’ Mem. at 11-12. Although McCulloch posited a framework based upon
categorizing attorneys based on years of legal experience, the special master in McCulloch also
noted that an attorney’s “skill, experience, and reputation” are relevant to the analysis. 2015 WL
5634323, at *13 (citing Avera, 515 F.3d at 1348). Petitioners argue that Mr. Wright’s fifty-seven
years of legal experience and strong reputation in the community warrant an hourly rate of $425,
rather than $325. Pet’rs’ Mem. at 11-12.
Here, the chief special master did consider Mr. Wright’s legal experience, skill level, and
reputation in determining a reasonable hourly rate. While acknowledging Mr. Wright’s
extensive legal experience, she noted that the case “appear[ed]” to be Mr. Wright’s first in the
Vaccine Program, and thus found it “difficult to determine [Mr. Wright’s] reputation and skill
level as compared to other petitioners in the [Vaccine] Program.” Fees Decision at 11.
Regardless of Mr. Wright’s activities or expertise in the legal community at large, Mr. Wright
appeared to lack the experience, reputation, and skill in the realm of vaccine petitions. In short,
the chief special master increased Mr. Wright’s hourly rate from a baseline of $275 to reflect his
extensive general experience, but limited the increase to $50 because Mr. Wright had no prior
vaccine-specific experience. Thus, the chief special master considered all relevant factors and
adequately explained the basis for the $325 hourly rate. The chief special master did not abuse
her discretion.
2. Excluding or reclassifying particular attorneys’ hours.
The chief special master performed a detailed analysis in excluding, reducing, and
reclassifying attorneys’ fees related to administrative and paralegal-level work, admission to the
United States Court of Federal Claims Bar, travel time, research on civil remedies, and research
regarding fundamental legal concepts about the Vaccine Program. See Fees Decision at 12-20.
Petitioners, however, argue that the requested attorneys’ fees are justified because the case was
“complex” and “heavily litigated.” Pet’rs’ Mem. at 6. In support of this position, petitioners
note that in the Vaccine Program, an attorney is required to “prepare his case as if every factual
and legal issue will be contested, regardless of how straightforward or uncontested the case may
appear with hindsight.” Id. at 8 (quoting Holton ex rel. Holton v. Sec’y of Health & Human
Servs., 24 Cl. Ct. 391, 398 (1991)). Additionally, petitioners assert that a firm “must have
discretion in the way it builds and presents its case[]” and that an evaluation of the hours spent
on the case “should not be overly mechanical.” Id. (quoting McCulloch, 2015 WL 5634323, at
*22).
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These arguments by petitioners related to advocacy and attorney discretion do not
directly address the reasoning underlying the chief special master’s decision to exclude or
reclassify attorneys’ hours. For example, the chief special master explained that secretarial and
clerical tasks, such as arranging travel plans, scheduling meetings, or reviewing invoices, are not
compensable in the Vaccine Program. See Rochester, 18 Cl. Ct. at 387; Mostovoy, 2016 WL
720969, at *5. She examined petitioners’ requested attorneys’ hours and noted each billing entry
that was secretarial or clerical in nature. Fees Decision at 13-16. The chief special master
performed a similarly detailed analysis with supporting case law in reducing attorneys’ fees for
paralegal-level work, admission to the United States Court of Federal Claims Bar, travel time,
research on civil remedies, and research on fundamental concepts about the Vaccine Program.
Id. at 12-20.
Although petitioners have an obligation to diligently prepare a vaccine petition and have
discretion in how to present support for the petition, diligence and discretion do not allow
petitioners to recover fees for hours that are not recoverable or not fully compensable at attorney-
level rates under the Vaccine Program. Because the chief special master presented specific
findings with sufficient explanations, the chief special master did not abuse her discretion in this
regard.
3. Percentage reductions to attorneys’ fees.
A special master need not award attorneys’ fees for “hours that are excessive, redundant,
or otherwise unnecessary.” Valdes v. Sec’y of Health & Human Servs., 89 Fed. Cl. 415, 424-25
(2009) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In evaluating a fee request, a
special master is permitted to reduce attorneys’ hours found to be excessive by a percentage; a
“line-by-line” determination is not required. Saxton, 3 F.3d at 1518-19; Sabella, 86 Fed. Cl. at
206 (citations omitted).
Even so, percentage reductions “are subject to heightened scrutiny.” Guerrero v. Sec’y of
Health & Human Servs., 120 Fed. Cl. 474, 481-82 (2015) (quoting International Rectifier Corp.
v. Samsung Elecs. Co., 424 F.3d 1235, 1239 (Fed. Cir. 2005)). The special master must provide
a “concise but clear” explanation as to why the fee reduction is justified. International Rectifier
Corp., 424 F.3d at 1239 (quoting Hensley, 461 U.S. at 437); Broekelschen v. Sec’y of Health &
Human Servs., No. 07-137V, 2008 WL 5456319, at *6 (Fed. Cl. Spec. Mstr. Dec. 17, 2008)
(citations omitted). But in providing this explanation, the special master “is not required to
explain how many hours are appropriate for any given task.” Broekelschen, 2008 WL 5456319,
at *6 (citations omitted).
Here, petitioners argue that the chief special master unreasonably reduced Andry Law
Group’s fees by 40 percent and Domengeaux Wright’s fees by 20 percent. Pet’rs’ Mem. at 9-10.
Petitioners contend that the chief special master failed to recognize the need for multiple
attorneys, relying primarily on Holton, 24 Cl. Ct. 391. Pet’rs’ Mem. at 9-10. In Holton, the
special master had reduced the hours of one attorney by 50 percent and a second attorney by 25
percent after finding “substantial duplication of effort” and excessive hours. 24 Cl. Ct. at 394.
Upon review, the Court of Federal Claims vacated the decision and found the special master’s
percentage reduction to be arbitrary, reasoning:
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The special master’s reduction for duplication of effort and for excessive time
spent does not take into account the realities of conducting a law practice. We
take judicial notice of the fact that litigation involves, inter alia, frequent travel,
review of documents, communication with the court, with witnesses, with
opposing counsel and with clients, legal research and drafting of pleadings and
motions. . . . [I]t was reasonable for [the two attorneys] to collaborate on the
Holton matter in order to assure that the litigation proceeded in a timely fashion.
Id. at 396-97.
The decision in Holton, however, is distinguishable from the chief special master’s
decision here. In Holton, the fees at issue related to a lead attorney and his associate. 24 Cl. Ct.
at 394. In vacating the special master’s judgment, the court stated that it was “reasonable for an
experienced private practitioner to choose to share the various tasks involved in litigation with an
associate.” Id. at 397. Furthermore, the court found that the special master unreasonably
deemed specific billing entries problematic. Id. (holding that the special master should not
criticize an attorney for reviewing every case document or exclude reasonable work performed
merely because the work did not result in a material contribution to the case).
In contrast, the chief special master here did not reduce attorneys’ fees simply because
multiple law firms and attorneys participated in the case. Instead, she found many of the specific
billing entries unreasonable. See Fees Decision at 21-24. And, unlike in Holton, the chief
special master did not criticize petitioners’ attorneys for reviewing every document or
performing work that did not ultimately contribute to the case. Rather, she found numerous and
specific entries of unreasonably duplicative or excessive billing, such as: an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intraoffice communications, attorneys billing excessive hours, attorneys entering
erroneous billing entries, attorneys billing excessively for interoffice communications between
Domengeaux Wright and Andry Law Group, and attorneys of Domengeaux Wright billing for
work that was performed by Andry Law Group. See id.
For example, the chief special master found that on one day, Ms. Cumberland of Andry
Law Group billed for work related to a status conference, then billed a second time for that same
work. Fees Decision at 21. In another example, Mr. Andry and Ms. Cumberland both entered
identical billing information for a variety of tasks, notably entering the same description “word-
for-word . . . despite the number and variety of tasks performed.” Id. at 21-22. The chief special
master also found that, among other problematic billing entries, attorneys billed twice for
conversations between two attorneys within the same firm, billed twice for discussions between
Andry Law Group and Domengeaux Wright, billed twice for simple tasks, and billed for a
review of e-mail exchanges between the two law firms. Id. at 21-24. Although it was reasonable
to employ multiple attorneys, it was not reasonable for senior attorneys to bill for redundant
work or extensive communications. See id. at 24.
Based upon the many duplicative or excessive billing entries, the chief special master
determined that a percentage reduction of fees was justified. Fees Decision at 20, 23-24. This
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methodology has been approved in prior vaccine cases. See Sabella, 86 Fed. Cl. at 214-15
(affirming the special master’s reduction of attorneys’ fees due to overstaffing and duplicative
billing, and rejecting petitioner’s argument that the special master failed to appreciate “the way
cases are handled in the real world of civil litigation”); Hines ex rel. Sevier v. Sec’y of Health &
Human Servs., 22 Cl. Ct. 750, 754-55 (1991) (affirming the special master’s reduction of
attorney hours because, despite the complexity of the case, the attorneys duplicated work and
billed for an unreasonable number of hours); Mostovoy, 2016 WL 720969, at *5-6 (holding that
an attorney could not recover any fee for certain work performed because, in part, the time billed
and types of entries appeared excessive); Austin v. Sec’y of Health & Human Servs., No. 10-
362V, 2013 WL 659574, at *14 (Fed. Cl. Spec. Mstr. Jan 31, 2013) (reducing attorneys’ fees due
to “excessive interoffice communications”); Soto v. Sec’y of Health & Human Servs., No. 09-
897V, 2011 WL 2269423, at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011) (reducing attorneys’ fees
due to excessive intrafirm communications, duplicative work, and unnecessary meetings);
Carcamo v. Sec’y of Health & Human Servs., No. 07-483V, 2011 WL 2413345, at *7 (Fed. Cl.
Spec. Mstr. May 20, 2011) (reducing the attorneys’ number of hours where two attorneys both
unreasonably billed for the same meetings with petitioner and with each other). Even in a case
where a special master’s reduction of fees was vacated, this court has noted that reductions will
be upheld when supported by specific findings. See Guerrero, 120 Fed. Cl. at 481-82 (holding
that the special master failed to adequately explain the reduction of fees, but also discussing
cases where percentage reductions were properly applied based upon a reasoned explanation and
specific findings).
Here, the chief special master provided an explicit, detailed explanation as to why a
reduction of fees was appropriate, and supported that decision with specific findings. Thus, the
chief special master did not abuse her discretion in reducing Andry Law Group’s fees by 40
percent and Domengeaux Wright’s fees by 20 percent.
B. Costs
1. Dr. Marcel Kinsbourne.
Petitioners’ challenge the chief special master’s award of $400 per hour for the work of
medical expert Dr. Kinsbourne, given that Dr. Kinsbourne has received a $500 hourly rate in
prior vaccine cases. See Pet’rs’ Mem. at 12-13; Simon, 2008 WL 623833, at *6-8; Adams v.
Sec’y of Health & Human Servs., No. 01-267V, 2008 WL 2221852, at *1-2 (Fed. Cl. Spec. Mstr.
Apr. 30, 2008). Petitioners also assert that $500 per hour is reasonable because “Dr.
Kinsbourne’s work supplied the grounds for then-Chief Special Master Vowell’s entitlement
finding.” Pet’rs’ Mem. at 12; see also Raymo, 2014 WL 1092274, at *18-23.
Petitioners’ arguments, however, fail to address the reasoning underlying the chief
special master’s award. The chief special master noted that while Dr. Kinsbourne previously
received $500 per hour in certain vaccine cases, he also received less than $500 per hour in
others. See, e.g., Bhuiyan v. Sec’y of Health & Human Servs., No. 05-1269V, 2015 WL
2174208, at *4-5 (Fed. Cl. Spec. Mstr. Apr. 16, 2015); Faoro, 2014 WL 5654330, at *3-4. The
chief special master went on explicitly to distinguish the case at hand from Simon, 2008 WL
623833, the leading precedent for the larger hourly rate. Dr. Kinsbourne was experienced in
14
testifying about the alleged injuries in Simon and that allowed him to lend his expertise more
efficiently, whereas former Chief Special Master Vowell found in this case that Dr. Kinsbourne
was “not an ideal expert witness” because, in part, he did not treat, research, teach, or write about
the injuries at issue. Fees Decision at 25 (citing Raymo, 2014 WL 1092274, at *18); see also
Faoro, 2014 WL 5654330, at *3-4 (distinguishing Dr. Kinsbourne’s contributions in the case
from his contributions in Simon to hold that a $500 hourly rate was unreasonable in Faoro). As
a result, Dr. Kinsbourne did not provide his expertise as efficiently as compared to his
contributions in Simon, and thus did not warrant a $500 hourly rate. See Fees Decision at 25-
26.14 The chief special master did not abuse her discretion in reaching this decision.
2. Dr. Daniel Becker.
Attorneys in vaccine cases have an obligation to “monitor the expert’s overall fees to
ensure that the fees remain reasonable.” Caves, 111 Fed. Cl. at 781 (internal quotation marks
and citations omitted). “A special master can decline to award compensation to an expert if the
petitioner failed to provide a sufficient explanation of the expert’s qualifications or the work that
the expert performed.” O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL
2399211, at *15 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (citations omitted).
Furthermore, petitioners bear the burden of showing that the costs expended were
reasonable. Caves, 111 Fed. Cl. at 782. In meeting this burden, petitioners must provide
“reasonably specific documentation” to support the costs requested. Ceballos, 2004 WL 784910,
at *13 (quoting Community Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1146 (Fed. Cir.
1993)); see also Valdes, 89 Fed. Cl. at 424 (“Several tasks lumped together with one time entry
frustrates the court’s ability to assess the reasonableness of the request.”) (quoting Broekelschen,
2008 WL 5456319, at *4-5). The special master may reduce the requested award accordingly if
the documentation is inadequate. Bell v. Sec’y of Health & Human Servs., 18 Cl. Ct. 751, 760
(1989) (citations omitted); see also Mostovoy, 2016 WL 720969, at *6 (“[T]he undersigned will
not compensate Mr. McHugh for the 347.65 hours for which the billing entries are vague, the
time expended is excessive, the task appears irrelevant to petitioners’ medical theory, and/or the
billing entry constitutes block billing.”).
Here, petitioners failed to provide detailed billing records for Dr. Becker, former Chief
Special Master Vowell found by a preponderance of the evidence that Dr. Becker plagiarized his
expert report, and former Chief Special Master Vowell did not rely on Dr. Becker’s opinion in
making a determination in the case. See Fees Decision at 26-28; Raymo, 2014 WL 1092274, at
*13-14. Petitioners had the burden of demonstrating that Dr. Becker’s fees and contributions to
the case were documented and reasonable. The chief special master adequately explained that
petitioners did not meet this burden, and thus she did not abuse her discretion in not allowing any
recovery for Dr. Becker’s costs.
3. Life care planners.
14
Dr. Kinsbourne billed only 31.75 hours in Simon. 2008 WL 623833, at *8. In contrast,
he billed 68.20 hours in this case. Fees Decision at 25.
15
Petitioners bear the burden of establishing that a cost is reasonable and providing
sufficient documentation, as discussed supra. Here, petitioners provided billing statements for
the life care planners, but those statements failed to adequately explain the hours spent on the
case, rate charged, or work performed. Fees Decision at 28. The lack of detailed billing
information made it “impossible to determine the reasonableness of the time expended by the life
care planners.” Id. at 29. Additionally, the life care planners requested hourly rates above $500
per hour, which is higher than the chief special master had ever previously awarded. Id. at 28-
29. Given the vague documentation and excessive rates, the chief special master did not abuse
her discretion in reducing the life care planners’ costs by 50 percent.
4. Travel expenses.
Petitioners challenge the chief special master’s decision to reduce certain travel expenses
as arbitrary, and argue that the travel accommodations used were more reasonable than any
available alternatives.
The chief special master provided a specific explanation as to why a reduction was
appropriate. She considered petitioners’ use of a charter flight and “Little Rock Limousine” to
be excessive. Fees Decision at 31. A decision not to award costs for travel expenses is
appropriate when petitioner fails to show that the expenses were reasonably necessary. See
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 732 (2011) (affirming the
special master’s disallowance of expenses related to an attorney’s first day of travel because the
attorney chose to arrive one day earlier than was required); Hines, 22 Cl. Ct. at 755 (affirming
the special master’s disallowance of certain travel expenses by an attorney because the attorney
failed to demonstrate that the trip was necessary). Petitioners assert that the travel expenses at
issue were reasonable and cheaper than the alternative, but fail to provide any support for their
claim. See Hines, 22 Cl. Ct. at 755 (holding that petitioner failed to justify travel expenses
related to a hearing because petitioner only provided a “bald allegation” that it was necessary for
multiple attorneys to be involved at the hearing). Thus, the chief special master did not abuse
her discretion.
5. Interest.
Finally, petitioners’ challenge the chief special master’s decision not to allow any costs
related to the interest accumulated on petitioners’ loan. Pet’rs’ Mem. at 17-18. The chief
special master concluded that an interest award was unreasonable. Fees Decision at 31.
As a general matter, “interest cannot be recovered in a suit against the [g]overnment in
the absence of an express waiver of sovereign immunity from an award of interest.” Preseault v.
United States, 52 Fed. Cl. 667, 677 (2002) (quoting Library of Congress v. Shaw, 478 U.S. 310,
311 (1986), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-
166, § 114, 105 Stat. 1071 (1991)). This “no-interest rule” can only be waived by a specific
provision in a contract or statute, or by the express consent of Congress. England v. Contel
Advanced Sys., Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004) (citing Shaw, 478 U.S. at 317). “[A]
general waiver as to attorneys’ fees, without more, does not waive the sovereign’s immunity
from interest.” Preseault, 52 Fed. Cl. at 677 (citing Shaw, 478 U.S. at 318-19).
16
The no-interest rule has been applied in the analogous context of the Uniform Relocation
Assistance and Land Acquisition Policies Act of 1970 (“Uniform Relocation Act”), Pub. L. No.
91-646, § 304, 84 Stat. 1906 (codified at 42 U.S.C. § 4654). Under the Uniform Relocation Act,
a prevailing plaintiff is entitled to reimbursement from the government for, among other things,
reasonable attorneys’ fees and costs. 42 U.S.C. § 4654(c). However, the Act does not expressly
provide for reimbursement of accumulated interest. See id.; see also Preseault, 52 Fed. Cl. at
670; Shelden v. United States, 41 Fed. Cl. 347, 351 (1998), appeal dismissed, 194 F.3d 1330
(Fed. Cir. 1999). Thus, consistent with the no-interest rule, courts addressing Section 4654
under the Uniform Relocation Act have not awarded claims for interest on attorneys’ fees or
costs. See Preseault, 52 Fed. Cl. at 677 (noting that plaintiffs cannot recover interest on
attorneys’ fees and expenses); Shelden, 41 Fed. Cl. at 353 (“[P]laintiffs cannot recover interest
on fees spent litigating the case.”); see also Applegate v. United States, 52 Fed. Cl. 751, 770-71
(2002) (noting that although the Fifth Amendment provides for interest related to the property at
issue, it does not allow for the recovery of interest on attorneys’ fees and expenses), aff’d, 70
Fed. Appx. 582 (Fed. Cir. 2003). Correlatively, the no-interest rule has also been applied in
contract disputes. See England, 384 F.3d at 1379 (“The [no-interest] rule has been held not only
to bar the recovery of interest on substantive claims against the government . . . but also interest
costs incurred on money borrowed as a result of the government’s breach or delay in payment.”)
(internal citations omitted).
Here, similar to the Uniform Relocation Act, the Vaccine Act provides for reasonable
attorneys’ fees and costs, but does not provide for an award related to interest accumulated on
those fees and costs. See 42 U.S.C. § 300aa-15. Though petitioners request costs for interest on
a loan to finance the case, rather than interest on attorneys’ fees, the same no-interest principle is
applicable because there is no provision, whether by statute, contract, or consent of Congress,
that allows for such an award. Thus, the chief special master did not abuse her discretion in not
awarding any costs for interest.
CONCLUSION
For the reasons stated, petitioners’ motion for review of the chief special master’s
decision awarding attorneys’ fees and costs is DENIED, and the chief special master’s decision
on attorneys’ fees and costs is AFFIRMED.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
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