Avera v. Secretary of Health and Human Services

515 F.3d 1343, 80 Fed. Cl. 1343, 2008 U.S. App. LEXIS 2556, 2008 WL 313927
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 6, 2008
Docket2007-5098
StatusPublished
Cited by2,450 cases

This text of 515 F.3d 1343 (Avera v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 80 Fed. Cl. 1343, 2008 U.S. App. LEXIS 2556, 2008 WL 313927 (Fed. Cir. 2008).

Opinions

DYK, Circuit Judge.

This case involves a dispute over the proper calculation and award of attorneys’ fees under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to -34 (2000) (“Vaccine Act”). Appellants Marty and Kellie Avera, as parents and next friends of their son Connor Avera, sought an award of attorneys’ fees after unsuccessfully pursuing a vaccine injury claim. They appeal from a decision of the United States Court of Federal Claims. That decision affirmed a decision by a special master, awarding the appellants fees based on the hometown rates charged in Cheyenne, Wyoming, rather than the rates charged in the District of Columbia and denying appellants’ request for interim fees. Avera v. Sec’y of Health & Human Servs., 75 Fed.Cl. 400, 406 (2007). We affirm.

BACKGROUND

On August 26, 2004, Marty and Kellie Avera filed a petition for vaccine injury compensation in the Court of Federal Claims on behalf of their son, Connor. In the petition, the Averas claimed that Con-nor had suffered an encephalopathy in response to one of a number of vaccines that he received in 2001, and sought damages under the Vaccine Act. The petition included two claims: an encephalopathy table injury claim and a cause-in-fact claim. See Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146, 1149 (Fed.Cir.2007) (describing table injury claims and cause-in-fact claims). On August 22, 2005, appellants abandoned the encephalopathy table injury claim but stated that they intended to pursue the cause-in-fact claim. On November 23, 2005, after a number of extensions and requests from the special master for the submission of medical reports to substantiate their cause-in-fact claim, appellants explained that they were unable to obtain a validating medical expert opinion and requested that the special master decide the case on the merits based on the current state of the record. In response, the special master concluded in a decision dated December 21, 2005, that, on the record before him, appellants were not entitled to secure compensation under the Vaccine Act. Appellants did not seek review of that decision.

On February 23, 2006, appellants filed an application for an award of attorneys’ [1346]*1346fees pursuant to 42 U.S.C. § 300aa-15(e)(1). Unlike most fee-shifting statutes, that provision does not include a “prevailing party” requirement, i.e. it does not require that a claimant prevail on the merits in order to secure fees. Instead, even if a claimant does not prevail, section 300aa-15(e)(l) allows for an award if the claim was brought “in good faith” and with “a reasonable basis.” In their fee application, appellants initially requested an award of attorneys’ fees that reflected the hourly billing rate prevailing in Cheyenne, Wyoming, where appellants’ counsel live and work. Attached to the application, an itemized list detailed the number of hours that each attorney had worked on the case and the hourly billing rate of each attorney. Appellants requested $200 per hour for the work of their lead counsel, Robert Moxley, $100 per hour for Julie Hernandez, a law school graduate, for the hours she spent working on the case before she was admitted to the bar, and $130 per hour for Ms. Hernandez for the hours she spent after she was admitted to the bar. Appellants included in the application a sworn declaration of Mr. Moxley, which stated that “[t]he rates that my firm has charged in this case are the same as we charge all other clients for the nature of services rendered.” J.A. at 149.

Subsequently, appellants submitted an amended fee petition which in all respects was identical to the first application except that it sought higher hourly billing rates. In the amended petition, appellants argued that, given counsel’s long experience practicing in the Vaccine Act Program, the special master should use the substantially higher rates in the so-called Laffey Matrix, utilized by the District of Columbia Circuit for counsel practicing in the District of Columbia in the area of complex litigation. The amended petition requested $574 to $598 per hour for Mr. Moxley’s work, $130 to $136 per hour for Ms. Hernandez’s work before she was admitted to the bar, and $240 per hour for work she completed after she was admitted.

The special master awarded fees at the originally requested rates. He rejected the appellants’ claim for higher rates using the District of Columbia Laffey Matrix, and held that he was bound to apply the precedent of the Court of Federal Claims, which endorses a “traditional geographic rule” to define an attorney’s relevant community. Accordingly, appellants were only entitled to an award of attorneys’ fees at the lower Cheyenne, Wyoming rate. Thereafter, appellants filed a motion to vacate the special master’s decision. In that motion, appellants repeated their argument that the special master should award fees at the higher District of Columbia rate and, for the first time, asserted that they were entitled to an award of interim fees pending appeal. The special master again rejected appellants’ request for an award utilizing the District of Columbia rates, and also rejected their request for interim fees because, in his view, the statute did not allow him to award interim fees.

Appellants sought review in the Court of Federal Claims, which affirmed the special master’s award of attorneys’ fees and denied the appellants’ request for interim fees. The court explained that most parties litigating under the Vaccine Act have only minimal contact with the District of Columbia. It found that, in this case, there were no hearings held in the District of Columbia and that appellants and their counsel did not once travel to the District of Columbia for any purpose. All of the legal services for the Averas were performed in Cheyenne. Under these circumstances, the Court of Federal Claims held that the application of the “forum rule,” utilizing the prevailing market rates in the District of Columbia forum, could not be justified. The court concluded that the [1347]*1347applicable market rate “is the community where the attorney maintains an office and practices law.” Avera, 75 Fed.Cl. at 405. On the issue of interim fees, the court reasoned that, “[a]s much as the Court would like to authorize interim fee payments ... where warranted, such relief is not authorized by the Vaccine Act.” Id.

Appellants timely filed a notice of appeal. We have jurisdiction pursuant to 42 U.S.C. § 300aa-12(f).

DISCUSSION

Under the Vaccine Act, we review a decision of the special master under the same standard as the Court of Federal Claims and determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa—12(e)(2)(B); Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353, 1355-56 (Fed.Cir.2007). Here the resolution of both issues turns on the statutory interpretation of the Vaccine Act, a question of law, which we review without deference. Markovich, 477 F.3d at 1356.

I

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
515 F.3d 1343, 80 Fed. Cl. 1343, 2008 U.S. App. LEXIS 2556, 2008 WL 313927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avera-v-secretary-of-health-and-human-services-cafc-2008.