“[W]e rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”
How later courts described this case
- “[W]e rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
KIMBERLEY BROWN, *
* No. 19-1564V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: June 7, 2024
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*********************
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner;
Jamica M. Littles, United States Dep’t of Justice, Washington, D.C., for
respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Kimberley Brown alleged that the influenza (“flu”) vaccine she received on
October 10, 2016 caused her to suffer complex regional pain syndrome (“CRPS”).
Pet., filed Oct. 8, 2019, at ¶¶ 2, 3, 5. Her case was dismissed. Decision, issued
Oct. 5, 2022.
Ms. Brown is seeking an award of her attorneys’ fees and costs. She is
awarded the amount she requested, $28,981.31.
* * *
1
The E-Government, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services) requires the Court to make this decision available to the
public. This posting will make the decision available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
Ms. Brown alleged a flu vaccine caused her to develop complex regional
pain syndrome. After collecting medical records---a process that took fairly long,
Ms. Brown filed a report from an expert who often assists petitioners seeking
compensation in the Vaccine Program, Carlo Tornatore, who is a neurologist. Dr.
Tornatore’s report did not support the claim that the flu vaccine caused Ms. Brown
to suffer complex regional pain syndrome. Exhibit 18. Ms. Brown sought a
ruling. Pet’r’s Mot., filed Sep. 16, 2022. She was denied compensation. 2022 WL
15526873.
Ms. Brown sought an award of her attorneys’ fees and costs in the amount of
$28,981.31. Pet’r’s Mot., filed Mar. 6, 2023. However, she did not explain why
she was eligible for an award of attorneys’ fees and costs, that is, she did not argue
that a reasonable basis supported the claim set forth in her petition. Thus, she was
directed to address this issue. Order, issued May 31, 2023. Ms. Brown did so.
Pet’r’s Memo., filed June 26, 2023. The Secretary contended that Ms. Brown did
not meet the reasonable basis standard. Resp’t’s Memo., filed July 21, 2023. Ms.
Brown defended her position. Pet’r’s Memo., filed July 31, 2023.
The parties’ development on these points was incomplete and they were
instructed to supplement their arguments because, in part, some treating medical
professionals appeared to support the claim that the flu vaccine caused Ms. Brown
to suffer chronic regional pain syndrome. Order, issued Aug. 18, 2023. Upon
further reflection, the Secretary “agree[d] that there was a reasonable basis for
petitioner’s claims and defer[red] to the special master to determine a reasonable
award for attorneys’ fees and costs.” Resp’t’s Supp’l Br., filed Sep. 19, 2023.
* * *
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful the undersigned finds that good
faith and reasonable basis existed throughout the matter. Respondent has agreed
that reasonable basis supported this claim. Respondent’s position greatly
contributes to the finding of reasonable basis. See Greenlaw v. United States, 554
U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for decision and
assign to courts the role of neutral arbiter of matters the parties present.”). A final
award of reasonable attorneys’ fees and costs is therefore proper in this case and
the remaining question is whether the requested fees and costs are reasonable.
2
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
The proposed hourly rates comport with rates previously awarded. See
Roscoe v. Sec’y of Health & Hum. Servs., No. 11-206V, 2024 WL 1253781 (Fed.
Cl. Spec. Mstr. Feb. 28, 2024). They are reasonable.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
2
The undersigned has reviewed the submitted billing entries and finds the
request to be reasonable. The billing entries contain sufficient detail to permit the
undersigned to assess their reasonableness, and upon review none appear to be
objectionable. Respondent also has not indicated that he finds any of the billing
entries to be objectionable. Therefore, petitioner is awarded final attorneys’ fees in
the amount of $17,264.10.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner’s requests a total of
$11,717.21 in attorneys’ costs. This amount primarily consists of compensation for
Dr. Tornatore’s work. Other costs include the costs associated with obtaining
medical records and printing. The undersigned finds these costs to be reasonable
and petitioner is awarded attorney costs in full.2
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $28,981.31 (representing
$17,264.10 in attorneys’ fees and $11,717.21 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Mr.
Richard Gage.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith. 3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Given the widespread use of electronic documents, the law firm’s printing of more than
4,000 pages seems odd. However, the Secretary did not interpose an objection to this cost and it
is accepted as reasonable. Nevertheless, Mr. Gage may wish to reconsider the need for printing
thousands of pages (or explain why such printing is needed).
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
2