Raymo v. Secretary of Health and Human Services

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.

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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.

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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.

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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.

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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.

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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

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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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