Esther Hall v. HHS - Hepatitis B, brachial plexus neuropathy (2010)

Esther Hall filed a petition on August 23, 2002, alleging that a hepatitis B vaccination she received in 1999 caused brachial plexus neuropathy. A special master awarded compensation in a decision dated December 4, 2008, with judgment entered on January 23, 2009.

The fee litigation that is the subject of this opinion arose from a dispute over the appropriate hourly rate for petitioner's attorney, Richard Gage, who maintained his law practice in Cheyenne, Wyoming throughout the litigation. Ms.

Hall filed a fee application requesting $83,400.34 in attorneys' fees and costs. On July 28, 2009, the special master awarded $64,488.14 on an interim basis — the portion he determined was not subject to reasonable dispute.

On October 6, 2009, the special master issued a final fees decision awarding $22,018 in additional attorneys' fees and $3,675 in costs for the period between January 2006 and April 2009. The central dispute in the final fees decision concerned whether Mr.

Gage was entitled to be compensated at the hourly rates prevailing in the Washington, D.C. forum market ($350 per hour) or at the rates prevailing in his local Cheyenne market ($220 to $240 per hour). The special master applied the Davis County exception to the forum-rates rule, as adopted by the Federal Circuit in Avera v.

HHS, 515 F.3d 1343 (Fed. Cir. 2008): because the bulk of Mr.

Gage's work was done outside the District of Columbia and there was a "very significant difference" between local rates and forum rates (59%), the special master awarded local rates. The total interim and final fee awards combined to $89,919.14 requested, with $86,506.14 awarded at that point.

Petitioner filed a motion for review on November 5, 2009, arguing that (1) the Supreme Court's decision in Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008) had overruled or undermined the Davis County exception, and (2) the difference between local and forum rates was not "very significant." The parties also filed a joint motion under RCFC 60(a) acknowledging that the special master's final fees decision had inadvertently awarded compensation for the same hours already paid in the interim award, creating a double-counting error of $23,461.30.

Judge Bush, writing for the Court of Federal Claims on April 6, 2010 (opinion issued under seal, published May 5, 2010), denied the motion for review and granted the joint correction motion. As to Richlin, the court held that that Supreme Court decision addressed a narrow question under the Equal Access to Justice Act — whether paralegal services are compensable at market rates or cost-to-firm rates — and did not mention, much less overrule, the Federal Circuit's adoption of the Davis County exception in Avera.

Because the Court of Federal Claims may not depart from Federal Circuit precedent unless expressly overruled by the Supreme Court or Congress, and neither had occurred, the Davis County exception remained binding. As to the "very significant difference" determination, the court affirmed the special master's finding and, in the absence of Federal Circuit guidance on how to quantify the threshold, announced that — for purposes of this case — a difference is very significant when the forum rate is approximately fifty percent higher than the local rate; the 59% gap here satisfied that standard.

The court granted the joint RCFC 60(a) motion, deducting the $23,461.30 that had been double-counted, reducing the final payment to $2,231.70. Petitioner filed a motion for reconsideration on May 5, 2010, arguing that the court had established a new binding bright-line rule and that the court had miscalculated the applicable rate differential.

The court denied the motion for reconsideration in a second opinion, issued June 3, 2010. The court clarified that it had not established any rule of binding precedent — CFC decisions are not precedential in other cases, and the language of the earlier opinion had explicitly stated it was a holding "under the circumstances of this case." The court also found no miscalculation: the $350 forum rate established by the special master was the rate applicable in 2006, and the comparison with the contemporaneous local rate yielded a consistent differential of approximately fifty-nine percent across all contested years.

Total fees paid to petitioner were $64,488.14 (interim) plus $2,231.70 (final) for a combined total of $66,719.84.