Caseflicks

Court of Appeals for the Federal Circuit • 2008

Avera v. Secretary of Health and Human Services

515 F.3d 1343 | 80 Fed. Cl. 1343 | 2008 U.S. App. LEXIS 2556

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Takeaway

In short, Avera makes District of Columbia forum rates the general Vaccine Act rule, subject to a substantial-outside-forum-work exception, and confirms that interim fees are legally available but require a concrete showing that they are warranted.

Background

Marty and Kellie Avera filed a Vaccine Act petition on behalf of their son, Connor, alleging that vaccines he received in 2001 caused an encephalopathy. They initially advanced both a table-injury theory and a causation-in-fact theory. After abandoning the table-injury claim and failing to obtain a medical expert opinion supporting causation, they asked the special master to decide the case on the existing record. The special master denied compensation, and the Averas did not seek review of that merits decision.

The Averas then sought attorney fees under 42 U.S.C. § 300aa-15(e)(1), which permits fees for an unsuccessful petitioner if the claim was brought in good faith and had a reasonable basis. Their initial application requested Cheyenne, Wyoming rates: $200 per hour for lead counsel Robert Moxley and lower rates for another attorney. In an amended application, they instead sought substantially higher District of Columbia rates based on the Laffey Matrix.

The special master awarded fees at the originally requested Cheyenne rates, applying a geographic or "hometown" approach. He also denied interim fees, believing the Vaccine Act did not authorize them. The Court of Federal Claims affirmed both rulings. It reasoned that District of Columbia forum rates were unjustified because the Averas, their counsel, and the litigation itself had virtually no connection to the District, and it held that the Act did not permit interim fee awards.

Issues

Issue #1

Whether attorney-fee awards under the Vaccine Act ordinarily should use the prevailing market rate in the District of Columbia forum or the rate where counsel practices.

Holding

The Vaccine Act generally calls for forum rates, but the Cheyenne rates were proper here because this case fell within a limited exception for work performed outside the forum at a substantially lower local rate.

Reasoning

The Vaccine Act authorizes "reasonable attorneys' fees," and the Federal Circuit had already approved use of the lodestar method: reasonable hours multiplied by a reasonable hourly rate. Under the Supreme Court's lodestar framework, a reasonable rate ordinarily reflects the prevailing market rate for comparable legal services in the relevant community.

Although neither the Vaccine Act nor Supreme Court precedent expressly identifies the relevant geographic community, courts of appeals generally interpret similar fee-shifting language to require forum rates. Because the Vaccine Act uses the same "reasonable attorneys' fees" formulation, the court saw no persuasive basis for adopting the government's categorical hometown rule, under which local counsel would always receive the rate of the place where they maintain their office.

The court nevertheless rejected the Averas' argument that forum rates apply without exception. Following Davis County Solid Waste Management & Energy Recovery Special Service District v. EPA, it recognized an exception where the bulk of counsel's work occurs outside the forum and the forum rate is very substantially higher than the local rate. That exception prevents a fee award from producing a windfall inconsistent with the purpose of fee-shifting legislation.

The exception applied on these facts. Counsel performed all of their work in Cheyenne, never traveled to the District of Columbia during the merits litigation, and no hearing occurred in either location. The requested District of Columbia rate for Moxley—up to $598 per hour—was nearly three times the $200 Cheyenne rate he originally represented was his ordinary charge. Because the work was entirely local and the rate disparity was significant, the special master properly used Cheyenne rates.

Having concluded that the Davis exception justified use of Cheyenne rates, the court did not decide whether the District of Columbia Laffey Matrix should be used in Vaccine Act cases that properly call for forum rates.

Issue #2

Whether the Vaccine Act permits an award of interim attorney fees before final resolution of the case.

Holding

Yes. The Vaccine Act permits interim fee awards in appropriate circumstances, although the Averas did not show circumstances justifying one pending this appeal.

Reasoning

The special master and the Court of Federal Claims wrongly treated the Vaccine Act as an absolute bar to interim fees. The government's contrary statutory argument depended on treating the Act's reference to "compensation" in § 300aa-15(f)(1) as including attorney fees, such that fees could not be paid until a post-judgment election. Federal Circuit precedent in Saunders had already rejected that reading: in this provision, "compensation" means merits damages, not attorney fees and costs.

Nothing else in the Vaccine Act prohibits interim fees. The Supreme Court has construed other fee-shifting statutes that are silent about interim awards to permit them, recognizing that forcing counsel to wait until all litigation ends can create hardship and discourage representation. The principle that similar fee language should generally receive similar treatment supported the same result under the Vaccine Act.

Interim fees are especially compatible with the Vaccine Act because an unsuccessful petitioner may receive fees upon showing good faith and a reasonable basis; there is no prevailing-party requirement. A special master can often assess those requirements early in a case, and interim payments help preserve the Act's goal of ensuring that vaccine claimants can obtain competent counsel.

The court nonetheless affirmed the denial of interim fees on the facts presented. The Averas sought fees only for the brief period while their appeal was pending, did not retain experts, incurred no substantial fee burden, and made no showing of undue hardship. Interim awards are most appropriate in protracted litigation involving costly expert work, circumstances not present here.

Concurrences

Judge Rader

Reasoning

Judge Rader agreed that the judgment should be affirmed but disagreed with the majority's rejection of the Court of Federal Claims' longstanding hometown-rule approach. In his view, the court should have respected the specialized tribunal's established fee doctrine rather than importing a forum-rate rule from materially different fee-shifting statutes.

The statutes relied upon by the majority generally make fees available only to prevailing parties and often operate in ordinary civil litigation involving juries and greater procedural complexity. Vaccine Act proceedings are more streamlined, and petitioners may recover fees even when they lose on the merits if they acted in good faith and had a reasonable basis. That difference, Judge Rader reasoned, supports local rates rather than District of Columbia rates.

Because the Court of Federal Claims is always located in Washington, D.C., a general forum rule could encourage attorneys who perform work in places such as Wyoming or Nebraska to seek higher D.C. compensation. Judge Rader believed a straightforward hometown rule would better avoid that incentive and would be simpler to administer than the majority's fact-intensive exception under Davis.