Garrison v. Secretary of Health & Human Services

128 Fed. Cl. 99, 2016 U.S. Claims LEXIS 1274, 2016 WL 4784054
CourtUnited States Court of Federal Claims
DecidedAugust 17, 2016
DocketNo. 14-762V
StatusPublished
Cited by49 cases

This text of 128 Fed. Cl. 99 (Garrison v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrison v. Secretary of Health & Human Services, 128 Fed. Cl. 99, 2016 U.S. Claims LEXIS 1274, 2016 WL 4784054 (uscfc 2016).

Opinion

Keywords: Interim Attorneys’ Fees and Costs; 42 U.S.C. § 300aa-15(e)(l); Motion for Review; 42 U.S.C. § 300aa-12(e)(2)(B); Forum Rate Rule; Davis County Exception.

OPINION AND ORDER

KAPLAN, Judge.

This case is currently before the Court on the government’s motion to review the Special Master’s award of interim attorneys’ fees and costs pursuant to the Rules of the United States Court of Federal Claims (RCFC), Appendix B, Vaccine Rules 23 and 24. ECF No. 42. For the reasons set forth below, the government’s motion for review is DENIED and the Special Master’s decision is AFFIRMED.

BACKGROUND

1. Proceedings Before the Office of Special Masters

On August 22,2014, Kristina Garrison filed a petition pursuant to the National Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-l et seq. (2012) (Vaccine Act). Petition at 1, ECF No. 1. In that petition, Ms. Garrison alleges that as a result of receiving the trivalent influenza (flu) vaccination on October 28, 2011, she developed narcolepsy with cataplexy. Id, ¶¶ 1-2. She claims that her symptoms are the cause of her continued unemployment, and that they diminish her quality of life. M. ¶¶ 8-9.

On October 29, 2015, Special Master Thomas L. Gowen issued a Ruling on Entitlement finding in favor of Ms. Garrison on the issue of liability. ECF No. 23. The Special Master reviewed Ms. Garrison’s medical records and treatment records, as well as expert opinions on narcolepsy and cataplexy, and several pieces of medical literature. Id at 1, The Special Master concluded that Ms. Garrison had provided reliable and persuasive evidence to support her claim and held that she was entitled to compensation. Id. at 2. The parties then began the damages phase of the proceeding, which is now ongoing. See Damages Order, ECF No. 24.

II. Petition for Interim Attorneys’ Fees and Costs

Ms. Garrison is represented in this action by Mr. Curtis R. Webb, a solo practitioner in Twin Falls, Idaho, who has substantial experience representing Vaccine Act petitioners. See infra. On January 7, 2016, Ms. Garrison filed a petition for interim attorneys’ fees and costs in accordance with 42 U.S.C. § 300aa-15(e)(1), ECF No. 27, requesting that the Special Master award $62,086.50 in attorneys’ fees and $12,626.51 in costs incurred. Id. at 1-2. To determine the fee award, Ms. Garrison proposed that that Special Master [102]*102apply a rate of $415 per hour, which she contended was the reasonable rate that would apply to Mr. Webb’s services in the forum for this action—Washington, DC. Id. at 1, 9.

On March 1, 2016, the government filed a brief in opposition to Ms. Garrison’s petition. ECF No. 31. Citing Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir.2008), the government argued that any fee awarded to Ms. Garrison should be based on the local rate for Twin Falls, Idaho (which the government argued was $275 per hour), rather than the rate for Washington, DC, because counsel had performed all work on the case outside of Washington, DC, and because the difference between the local and forum rates was a substantial one. Id. at 3-4.

III. The Special Master’s Decision

On April 29, 2016, Special Master Gowen issued his decision on interim attorneys’ fees and costs. Decision on Interim Attorneys’ Fees and Costs (Dec. on Fees), ECF No. 38. For the reasons set forth in his opinion, he awarded Ms. Garrison $56,801.25 in attorneys’ fees and $12,626.51 for costs. Id. at 13. Critically for purposes of the motion for review, Special Master Gowen ruled that the difference between the forum rate for Mr. Webb’s services (which he determined was $387.50 per hour) and the local rate (which he pegged at $327 per hour) was not “very significant” within the meaning of Avera. Id. at 9 (citing Avera, 515 F.3d at 1347-48). Therefore, he used the forum rate as the basis for determining reasonable attorneys’ fees in this case. Id.

Special Master Gowen began his analysis by observing that a reasonable hourly rate under the Vaccine Act is “the prevailing market rate defined as the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. at 2 (quoting Avera, 515 F.3d at 1347-48). He noted that, under Avera, “a court should generally use the forum rate, i.e., the District of Columbia rate,” when determining a fee award. Id. “However,” he explained, “an exception to the forum rule applies where [as in this case] the bulk of an attorney’s work is performed outside of the forum, and where there is a Very significant’ difference in compensation rates between the place where the work was performed and the forum.” Id. (quoting Avera, 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency (Davis County), 169 F.3d 755, 758 (D.C.Cir.1999))).

The Special Master began his analysis of the prevailing market rate in Twin Falls, Idaho by reviewing the previous fee awards to Mr. Webb in vaccine cases, which Mr. Webb’s affidavit identified as the basis for setting his local rate in this case. See Dec. on Fees at 3. He observed that in 2013 two special masters determined that $270 per hour was a reasonable local hourly rate for work that Mr. Webb performed in 2013. Id. Special Master Gowen adjusted that rate upward by 3.7%, which was the annual rate of growth in attorneys’ fees since 2008 that he had applied in a previous case. Id. at 3 (citing McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed.Cl.Spec. Mastr. Sept. 1, 2015)). He concluded that “if local rates are determined by adjusting the previously awarded $270 per hour rate in vaccine cases, a reasonable local rate for work performed in 2014-2015 would be $285 per hour.” Id. at 4; see also Pet. for Interim Fees and Costs, Aff. of Curtis R. Webb ¶ 11 (“In my opinion, $285 an hour would be a reasonable local rate for work done in 2014-2015 for an attorney of my experience (31 years as an attorney), specialization, and reputation in Twin Falls, Idaho.”).

Special Master Gowen, however, chose not to use the rates previously employed by other special masters as the basis for determining a reasonable local hourly rate in this matter. Instead, he examined the local rates approved in several decisions of the federal district court in Boise, Idaho, which Ms. Garrison had cited for the first time in her reply brief in support of her motion for fees. Dec. on Fees at 4-6 (citing Pet’ris Reply in Supp. of Her Mot. for Interim Attorneys’ Fees and Costs at 3, ECF No. 33 (arguing that the cases established that the appropriate local rate actually “may be as high as $400 an hour”)). The Special Master concluded that [103]*103the cases cited “support a finding that a reasonable local rate for Mr. Webb’s work in 2014 and 2015 is higher than $285 per hour.” Id. at 5.

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128 Fed. Cl. 99, 2016 U.S. Claims LEXIS 1274, 2016 WL 4784054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrison-v-secretary-of-health-human-services-uscfc-2016.