United States Court of Appeals for the Federal Circuit
2007-5098
MARTY AVERA and KELLIE AVERA, parents and next friends of CONNOR AVERA, a minor,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Robert T. Moxley, Robert T. Moxley, P.C., of Cheyenne, Wyoming, argued for petitioners-appellants.
John T. Battaglia, Deputy Associate Attorney General, Torts Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Mark W. Rogers, Deputy Director, Catharine E. Reeves, Assistant Director, and Julia W. McInerny, Trial Attorney.
Appealed from: United States Court of Federal Claims
Judge Thomas C. Wheeler United States Court of Appeals for the Federal Circuit
2007-5098
MARTY AVERA and KELLIE AVERA, parents and next friends of CONNOR AVERA, a minor,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Appeal from the United States Court of Federal Claims in 04-VV-1385 before Judge Thomas C. Wheeler.
___________________________
DECIDED: February 6, 2008 ___________________________
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit Judge.
Opinion for the court filed by Circuit Judge DYK. Concurring opinion filed by Circuit Judge RADER.
DYK, Circuit Judge.
This case involves a dispute over the proper calculation and award of attorneys’
fees under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10
to -34 (2000) (“Vaccine Act”). Appellants Marty and Kellie Avera, as parents and next
friends of their son Connor Avera, sought an award of attorneys’ fees after
unsuccessfully pursuing a vaccine injury claim. They appeal from a decision of the United States Court of Federal Claims. That decision affirmed a decision by a special
master, awarding the appellants fees based on the hometown rates charged in
Cheyenne, Wyoming, rather than the rates charged in the District of Columbia and
denying appellants’ request for interim fees. Avera v. Sec’y of Health & Human Servs.,
75 Fed. Cl. 400, 406 (2007). We affirm.
BACKGROUND
On August 26, 2004, Marty and Kellie Avera filed a petition for vaccine injury
compensation in the Court of Federal Claims on behalf of their son, Connor. In the
petition, the Averas claimed that Connor had suffered an encephalopathy in response to
one of a number of vaccines that he received in 2001, and sought damages under the
Vaccine Act. The petition included two claims: an encephalopathy table injury claim and
a cause-in-fact claim. See Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146,
1149 (Fed. Cir. 2007) (describing table injury claims and cause-in-fact claims). On
August 22, 2005, appellants abandoned the encephalopathy table injury claim but
stated that they intended to pursue the cause-in-fact claim. On November 23, 2005,
after a number of extensions and requests from the special master for the submission of
medical reports to substantiate their cause-in-fact claim, appellants explained that they
were unable to obtain a validating medical expert opinion and requested that the special
master decide the case on the merits based on the current state of the record. In
response, the special master concluded in a decision dated December 21, 2005, that,
on the record before him, appellants were not entitled to secure compensation under
the Vaccine Act. Appellants did not seek review of that decision.
2007-5098 2 On February 23, 2006, appellants filed an application for an award of attorneys’
fees pursuant to 42 U.S.C. § 300aa-15(e)(1). Unlike most fee-shifting statutes, that
provision does not include a “prevailing party” requirement, i.e. it does not require that a
claimant prevail on the merits in order to secure fees. Instead, even if a claimant does
not prevail, section 300aa-15(e)(1) allows for an award if the claim was brought “in good
faith” and with “a reasonable basis.” In their fee application, appellants initially
requested an award of attorneys’ fees that reflected the hourly billing rate prevailing in
Cheyenne, Wyoming, where appellants’ counsel live and work. Attached to the
application, an itemized list detailed the number of hours that each attorney had worked
on the case and the hourly billing rate of each attorney. Appellants requested $200 per
hour for the work of their lead counsel, Robert Moxley, $100 per hour for Julie
Hernandez, a law school graduate, for the hours she spent working on the case before
she was admitted to the bar, and $130 per hour for Ms. Hernandez for the hours she
spent after she was admitted to the bar. Appellants included in the application a sworn
declaration of Mr. Moxley, which stated that “[t]he rates that my firm has charged in this
case are the same as we charge all other clients for the nature of services rendered.”
J.A. at 149.
Subsequently, appellants submitted an amended fee petition which in all respects
was identical to the first application except that it sought higher hourly billing rates. In
the amended petition, appellants argued that, given counsel’s long experience
practicing in the Vaccine Act Program, the special master should use the substantially
higher rates in the so-called Laffey Matrix, utilized by the District of Columbia Circuit for
counsel practicing in the District of Columbia in the area of complex litigation. The
2007-5098 3 amended petition requested $574 to $598 per hour for Mr. Moxley’s work, $130 to $136
per hour for Ms. Hernandez’s work before she was admitted to the bar, and $240 per
hour for work she completed after she was admitted.
The special master awarded fees at the originally requested rates. He rejected
the appellants’ claim for higher rates using the District of Columbia Laffey Matrix, and
held that he was bound to apply the precedent of the Court of Federal Claims, which
endorses a “traditional geographic rule” to define an attorney’s relevant community.
Accordingly, appellants were only entitled to an award of attorneys’ fees at the lower
Cheyenne, Wyoming rate. Thereafter, appellants filed a motion to vacate the special
master’s decision. In that motion, appellants repeated their argument that the special
master should award fees at the higher District of Columbia rate and, for the first time,
asserted that they were entitled to an award of interim fees pending appeal. The
special master again rejected appellants’ request for an award utilizing the District of
Columbia rates, and also rejected their request for interim fees because, in his view, the
statute did not allow him to award interim fees.
Appellants sought review in the Court of Federal Claims, which affirmed the
special master’s award of attorneys’ fees and denied the appellants’ request for interim
fees. The court explained that most parties litigating under the Vaccine Act have only
minimal contact with the District of Columbia. It found that, in this case, there were no
hearings held in the District of Columbia and that appellants and their counsel did not
once travel to the District of Columbia for any purpose. All of the legal services for the
Averas were performed in Cheyenne. Under these circumstances, the Court of Federal
Claims held that the application of the “forum rule,” utilizing the prevailing market rates
2007-5098 4 in the District of Columbia forum, could not be justified. The court concluded that the
applicable market rate “is the community where the attorney maintains an office and
practices law.” Avera, 75 Fed. Cl. at 405. On the issue of interim fees, the court
reasoned that, “[a]s much as the Court would like to authorize interim fee
payments . . . where warranted, such relief is not authorized by the Vaccine Act.” Id.
Appellants timely filed a notice of appeal. We have jurisdiction pursuant to 42
U.S.C. § 300aa-12(f).
DISCUSSION
Under the Vaccine Act, we review a decision of the special master under the
same standard as the Court of Federal Claims and determine if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C.
§ 300aa-12(e)(2)(B); Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353,
1355-56 (Fed. Cir. 2007). Here the resolution of both issues turns on the statutory
interpretation of the Vaccine Act, a question of law, which we review without deference.
Markovich, 477 F.3d at 1356.
I
The first issue is whether forum rates should be applied to attorneys’ fee awards
under the Vaccine Act. The special master held that it was bound by the decisions of
the Court of Federal Claims to apply a “traditional geographic rule” to determine which
locality’s market rates it must apply to an award of attorneys’ fees. Under that rule, the
special master awarded the appellants attorneys’ fees that reflected the prevailing
market rate in Cheyenne, Wyoming, where appellants’ counsel maintain their offices
and performed their work. The Court of Federal Claims upheld that decision on appeal.
2007-5098 5 It stressed that a forum rule is inappropriate for Vaccine Act cases, in which the parties
have only minimal contact with the District of Columbia.
Under the Vaccine Act, a special master who has awarded a petitioner
“compensation” on a vaccine related claim “shall also award as part of such
compensation an amount to cover . . . reasonable attorneys’ fees.” 42 U.S.C. § 300aa-
15(e)(1). 1 Even if a petitioner is not awarded “compensation,” the special master “may
award an amount of compensation to cover petitioner’s reasonable attorneys’ fees . . . if
the special master or court determines that the petition was brought in good faith and
there was a reasonable basis for the claim for which the petition was brought.” 2 Id.
We have previously endorsed the use of the lodestar approach to determine
what constitutes “reasonable attorneys’ fees” under the Vaccine Act. See Saxton ex rel.
Saxton v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
1 The statute also provides that the Court of Federal Claims on review may award attorneys’ fees. 42 U.S.C. § 300aa-15(e)(1). 2 Section 300aa-15(e)(1) provides:
(1) In awarding compensation on a petition filed under section 300aa-11 of this title the special master or court shall also award as part of such compensation an amount to cover--
(A) reasonable attorneys' fees, and
(B) other costs,
incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.
2007-5098 6 Using the lodestar approach, a court first determines an initial estimate of a reasonable
attorneys’ fee by “multiplying the number of hours reasonably expended on the litigation
times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). Once a
court makes that initial calculation, it may then make an upward or downward departure
to the fee award based on other specific findings. Id. In Blum, the Supreme Court
explained that a reasonable hourly rate 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 896 n.11. As with other fee-shifting
statutes, section 300aa-15(e)(1) does not specify the standard for determining which
hourly rate a court should apply to the lodestar analysis—that is, whether the
reasonable hourly rate to be used in the lodestar calculation is the prevailing market
rate of the forum court, as petitioner contends, or the prevailing market rate of the
geographic location where the attorney is based, as the government contends. Nor
does Blum or any other Supreme Court decision answer that question.
However, the courts of appeals have uniformly concluded that, in general, forum
rates should be used to calculate attorneys’ fee awards under other fee-shifting
statutes. See, e.g., A.R. ex rel. R.V. v. N.Y. City Dep’t of Educ., 407 F.3d 65, 79 (2d
Cir. 2005) (applying a forum rule to the fee-shifting provision of the Individuals with
Disabilities Education Act); Interfaith Cmty. Org. v. Honeywell Int’l, 426 F.3d 694, 705
(3d Cir. 2005) (applying the forum rule to the fee-shifting provision of the Resource
Conservation and Recovery Act); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169,
175 (4th Cir. 1994) (“The relevant market for determining the prevailing rate [under the
Civil Rights Attorney's Fees Awards Act of 1976] is ordinarily the community in which
2007-5098 7 the court where the action is prosecuted sits.”); Donnell v. United States, 682 F.2d 240,
251 (D.C. Cir. 1982) (applying the forum rule to the fee-shifting provision of the Voting
Rights Act), cert. denied, 459 U.S. 1204 (1983). We recognize that similar language in
the various fee-shifting statutes should be interpreted alike absent some indication to
the contrary. See Indep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2
(1989); Sacco v. United States, 452 F.3d 1305, 1310 (Fed. Cir. 2006). 3 Since all of
these statutes use similar language—referring to “reasonable attorneys’ fees”—that
would suggest that the forum rates should generally apply. Here, the forum for cases
brought pursuant to the Vaccine Act is the District of Columbia, where the Court of
Federal Claims, which has exclusive jurisdiction over cases arising under the Vaccine
Act, is located. See 42 U.S.C. § 300aa-12(a).
Nonetheless, the government urges that we adopt a “hometown rule,” which
dictates that the proper rate to apply is the market rate of the geographic location where
the attorney maintains an office and practices law. Under a hometown rule approach, a
court need only consider the geographic location where the attorney is based, without
regard to where the services are performed. The government contends that for Vaccine
Act litigation a hometown rule would more accurately reflect each claimant’s actual legal
costs and would prevent any particular claimant from receiving a windfall. We disagree.
Under the Vaccine Act, there is no reason to depart from the general rule that a court
should apply a forum rate to determine the amount of fees to award a claimant, and the
3 In Richlin Security Service Co. v. Chertoff, 472 F.3d 1370 (Fed. Cir. 2006), we applied the same principle but found that differences in the “goals and objectives” of the similar fee-shifting statutes required different interpretations. Id. at 1378, cert. granted, 128 S. Ct. 613 (2007).
2007-5098 8 government offers no convincing reason why we should do so. We therefore find that,
under the Vaccine Act, the same standard applies: to determine an award of attorneys’
fees, a court in general should use the forum rate in the lodestar calculation.
But appellants’ view that the special master must invariably apply forum rates
without exception is equally flawed. In Davis County Solid Waste Management and
Energy Recovery Special Service District v. United States Environmental Protection
Agency, 169 F.3d 755 (D.C. Cir. 1999), the District of Columbia Circuit recognized a
limited exception to the forum rule “where the bulk of [an attorney’s] work is done
outside the jurisdiction of the court and where there is a very significant difference in
compensation favoring D.C.” Id. at 758 (emphases in original). Davis arose out of a
challenge to regulations promulgated by the Environmental Protection Agency pursuant
to its authority under the Clean Air Act. Id. at 756. The case was heard before a court
in the District of Columbia, though the challengers were represented by a law firm
situated in Salt Lake City, Utah. Id. The court found that the attorneys performed
virtually all of their work on the case in Salt Lake City, a much less expensive legal
market. Id. at 760. Recognizing a limited exception to the forum rule under these
circumstances, the District of Columbia Circuit reasoned, “would prevent the occasional
erratic result where the successful petitioner is vastly overcompensated.” Id. at 758.
The court found that the exception “better reflects the purpose of fee shifting statutes”
since it prevents a result that “would produce windfalls inconsistent with congressional
intent.” Id. at 759-60. No other circuit has rejected Davis.
We think that Davis represents a sound approach to setting the reasonable rate
of attorneys’ fees in Vaccine Act cases in which the bulk of the work is done outside of
2007-5098 9 the District of Columbia in a legal market where the prevailing attorneys’ rates are
substantially lower.
This case is exactly like Davis. There is no question that appellants’ attorneys
performed the bulk of their work outside of the District of Columbia. Indeed, the record
is clear that appellants’ attorneys performed all of their work from their law office in
Cheyenne, Wyoming. The special master did not conduct a hearing in this case either
in the District of Columbia or in Cheyenne, since appellants requested that the special
master decide the case on the record before it. As the Court of Federal Claims found
and the parties do not dispute, during the merits phase of this case, appellants’ counsel
never set foot in the District of Columbia.
It is also clear that the market rate prevailing in the District of Columbia is
significantly higher than the market rate prevailing in Cheyenne. In Davis, the District of
Columbia market rate that the attorneys sought was nearly seventy percent higher than
the attorneys’ local Salt Lake City rate. Davis, 169 F.3d at 757. In this case, the
discrepancy is even more profound. That discrepancy is apparent from a comparison of
the original request for attorneys’ fees to the amended request for attorneys’ fees. In
the original request, Mr. Moxley asked for $200 per hour for his work, a rate which he
described as being “the same as we charge all other clients for the nature of services
rendered.” J.A. at 149. In the amended request, Mr. Moxley asked for $598 per hour—
nearly three times the originally requested hourly rate. 4 In other words, if we assume
from appellants’ own requests for attorneys’ fees that the prevailing market rate in the
4 Similarly, the amended fee application requested $240 per hour for Ms. Hernandez for the hours she worked after she was admitted to the bar—a rate $110 higher than the originally requested rate and an 84.6% increase.
2007-5098 10 District of Columbia is nearly three times the prevailing market rate in Cheyenne, we
have no trouble concluding that the difference in market rates is significant.
Because the attorneys in this case performed the entirety of their work in
Cheyenne, Wyoming, and the District of Columbia rates that they requested are
significantly higher than the rates prevailing in Cheyenne, following Davis we hold that
the special master did not err in awarding attorneys’ fees at the lower Cheyenne rate.
We thus have no occasion to determine whether the so-called Laffey Matrix should play
any role in the determination of fees under the Vaccine Act in those cases where forum
rates are utilized.
II
The second issue is whether the appellants are entitled to an award of interim
fees pending appeal. During the pendency of this appeal, we determined that such an
award was not appropriate, and we now explain the basis for that decision.
The special master summarily rejected appellants’ request for an award of
interim fees as “frivolous,” since “[t]he statute enacting the Program does not accord the
special master the power to award attorney’s fees and attorney’s costs on an interim
basis.” J.A. at 33. The Court of Federal Claims similarly held without explanation that it
“lack[ed] authority” under the Vaccine Act to grant interim fees and likewise disposed of
appellants’ request. Avera, 75 Fed. Cl. at 405.
On appeal, the government agreed with the special master and with the Court of
Federal Claims, arguing that the statutory text of the Vaccine Act prohibits a special
master or court from granting an award of interim fees. The government argued that the
Vaccine Act “makes no room for” interim fees. Br. of Resp’-Appellee at 29. The
2007-5098 11 government argued that an interim award is only permissible after judgment because
section 300aa-15(f)(1) provides for “compensation”—which the government argued
“includes attorneys’ fees”—only when there has been an “elect[ion] to accept or reject”
compensation under section 300aa-21(a). 5 Br. of Resp’t-Appellee at 28. And such an
5 Subsection 300aa-15(f)(1) provides:
Except as provided in paragraph (2), no compensation may be paid until an election has been made, or has been deemed to have been made, under section 300aa-21(a) of this title to receive compensation.
42 U.S.C. § 300aa-15(f)(1).
Subsection 300aa-21(a) provides:
After judgment has been entered by the United States Court of Federal Claims or, if an appeal is taken under section 300aa-12(f) of this title, after the appellate court's mandate is issued, the petitioner who filed the petition under section 300aa-11 of this title shall file with the clerk of the United States Court of Federal Claims--
(1) if the judgment awarded compensation, an election in writing to receive the compensation or to file a civil action for damages for such injury or death, or
(2) if the judgment did not award compensation, an election in writing to accept the judgment or to file a civil action for damages for such injury or death.
An election shall be filed under this subsection not later than 90 days after the date of the court's final judgment with respect to which the election is to be made. If a person required to file an election with the court under this subsection does not file the election within the time prescribed for filing the election, such person shall be deemed to have filed an election to accept the judgment of the court. If a person elects to receive compensation under a judgment of the court in an action for a vaccine-related injury or death associated with the administration of a vaccine before October 1, 1988, or is deemed to have accepted the judgment of the court in such an action, such person may not bring or maintain a civil action for damages against a vaccine administrator or manufacturer for the vaccine-related injury or death for which the judgment was entered. For limitations on the bringing of civil actions for vaccine-related injuries or deaths associated
2007-5098 12 election can be made only after the entry of judgment. This interpretation of subsection
300aa-15(f)(1), i.e., that “compensation” includes attorneys’ fees, was directly rejected
by Saunders v. Secretary of the Department of Health and Human Services, 25 F.3d
1031 (Fed. Cir. 1994).
In Saunders, the Vaccine Act claimant lost on the merits of her cause-in-fact
injury claim, and the Court of Federal Claims entered judgment dismissing her petition.
Id. at 1032. Instead of accepting the court’s judgment against her, the claimant elected
to file a civil action for damages pursuant to 42 U.S.C. § 300aa-21(a). Id. The claimant
nonetheless filed an application for attorneys’ fees pursuant to section 300aa-15(e)(1).
Id. at 1033. The government, opposing an award of fees, argued that because the
claimant had elected to reject the court’s judgment, she was precluded from receiving
attorneys’ fees. Id. The “linchpin” of the government’s argument in Saunders was that
the word “compensation” in section 300aa-15(f)(1), which provides for an award of
compensation only after an “election,” “necessarily encompasses both the payment of
attorneys’ fees and costs and the payment of an award on the merits under the
Program.” Id. at 1034. Rejecting the government’s argument, we held that the term
“compensation” in subsection 300aa-15(f)(1) refers “to payment for the compensatory
damages referenced in 42 U.S.C. § 300aa-15(a) to (d), not payment of attorneys’ fees
and costs.” Id. at 1035 (emphasis added). Thus, subsection 300aa-15(f)(1) does not
limit the award of attorneys’ fees to situations in which an election has been made. The
with the administration of a vaccine after October 1, 1988, see section 300aa-11(a)(2) of this title.
42 U.S.C. § 300aa-21(a).
2007-5098 13 government’s argument that the Vaccine Act limits the award of fees to situations in
which an election has been made is therefore incorrect. There is nothing in the Vaccine
Act that prohibits the award of interim fees.
The Supreme Court has construed other fee-shifting statutes, which are silent
with respect to interim fees, to allow interim fees in appropriate circumstances. In
Bradley v. School Board of Richmond, 416 U.S. 696 (1974), the Supreme Court
construed section 718 of Title VII of the Emergency School Aid Act, which provided that
a “court, in its discretion . . . may allow the prevailing party . . . a reasonable attorney’s
fee,” to allow the award of interim fees and costs. Id. at 709 n.12, 723. “To delay a fee
award until the entire litigation is concluded,” the Court recognized, “would work
substantial hardship on plaintiffs and their counsel, and discourage the institution of
actions despite the clear congressional intent to the contrary.” Id. at 723. Similarly, in
Hanrahan v. Hampton, 446 U.S. 754 (1980), the Supreme Court construed 42 U.S.C.
§ 1988, which provides for an award of “a reasonable attorney’s fee,” to allow the award
of interim fees. Id. at 757-58. The Supreme Court reaffirmed the availability of an
interim fee award in Texas State Teachers Association v. Garland Independent School
District, 489 U.S. 782, 790-91 (1989) (“[I]f petitioners’ victory . . . had been only an
interim one, with other issues remanded for further proceedings in the District Court,
petitioners would have been entitled to some fee award for their successful claims
under § 1988.”). In each of these cases, the Court recognized the propriety of interim
awards, even though the statutes only provided for fees to be awarded to a “prevailing
2007-5098 14 party.” Other courts of appeals have consistently granted interim awards under similar
fee-shifting statutes. 6
Again, the principle that similar language in separate fee-shifting statutes should
generally be interpreted alike suggests that interim fee awards are permissible under
the Vaccine Act. Zipes, 491 U.S. at 758 n.2. Indeed, in vaccine cases there is even
more reason to award interim fees because there is no prevailing party requirement.
Instead, the Vaccine Act merely requires parties who do not prevail to show that their
claim was brought “in good faith” and with “a reasonable basis.” 42 U.S.C. § 300aa-
15(e)(1). A special master can often determine at an early stage of the proceedings
whether a claim was brought in good faith and with a reasonable basis. Moreover, as
we noted in Saunders, one of the underlying purposes of the Vaccine Act was to ensure
that vaccine injury claimants have readily available a competent bar to prosecute their
claims. 25 F.3d at 1035. Denying interim fee awards would clearly make it more
difficult for claimants to secure competent counsel because delaying payments
decreases the effective value of awards. Thus we conclude that the special master and
the Court of Federal Claims erred in holding that an interim fee award is not permissible.
The statute permits such awards.
Although we find that the special master and the Court of Federal Claims erred in
holding that the statute bans interim fee awards, we find that there is no basis for an
6 See Rosenfeld v. United States, 859 F.2d 717, 727 (9th Cir. 1988) (awarding interim fees under the Freedom of Information Act); Parker v. Lewis, 670 F.2d 249, 250 (D.C. Cir. 1981) (awarding interim fees under Title VII of the Civil Rights Act of 1964); Smallwood v. Nat’l Can Co., 583 F.2d 419, 421 (9th Cir. 1978) (same); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358-59 (5th Cir. 1977) (same), cert. denied, 434 U.S. 1034 (1978); Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974) (same).
2007-5098 15 interim fee award here. Interim fees are particularly appropriate in cases where
proceedings are protracted and costly experts must be retained. In this case, however,
appellants only sought interim fees pending appeal, and made no showing that would
justify an award of interim fees during that pendency. Appellants have not
demonstrated that they have suffered undue hardship. The amount of the fees here
was not substantial; appellants had not employed any experts; and there was only a
short delay in the award pending the appeal. Accordingly, we affirm the judgment (but
not the reasoning) of the Court of Federal Claims that held that the petitioner was not
entitled to an award of interim fees.
CONCLUSION
For the foregoing reasons, the decision below is
AFFIRMED.
No costs.
2007-5098 16 United States Court of Appeals for the Federal Circuit 2007-5098
MARTY AVERA and KELLIE AVERA, parents and next friends of CONNOR AVERA, a minor,
Petitioners-Appellants,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Respondent-Appellee.
Appeal from the United States Court of Federal Claims in 04-VV-1385 before Judge Thomas C. Wheeler.
RADER, Circuit Judge, concurring.
While I agree with the panel’s judgment, I write separately to question the panel’s
wisdom in jettisoning the Court of Federal Claims’ longstanding application of the
“hometown rule” approach to attorneys’ fees awards under the Vaccine Act. Rather
than referring to other circuits’ approaches to fee-shifting statutes (all of which differ
significantly from the Vaccine Act fee provisions), I would honor the Court of Federal
Claims’ established doctrines for fees in vaccine cases.
The panel saw “no convincing reason” to apply the hometown rule to Vaccine Act
cases because other statutes apply a forum rule for fee-shifting. For instance, this court
chose to rely on inapposite provisions in the Resource Conservation and Recovery Act,
the Civil Rights Attorney’s Fees Awards Act, or the Voting Rights Act, and, as in Davis
County Solid Waste Management v. United States Environmental Protection Agency,
169 F.3d 755 (D.C. Cir. 1999), the Clean Air Act. Op. at 8. These Acts have fee-
shifting provisions that are very different from the Vaccine Act and operate in contexts far removed from the federal claims jurisprudence of the United States Court of Federal
Claims. Specifically, under these other statutes, a party must prevail to gain an
entitlement to fees. These other cases also feature potential jury trials and other
complexities. The Vaccine Act fee provisions feature neither of these important points.
This court hints at those differences when addressing interim fee awards. See
Op. at 14-15. Indeed the opportunity for non-prevailing petitioners to recover fees in
Vaccine Act cases may provide an additional justification for awarding interim fees.
This difference from other fee-shifting statutes, however, cuts against application of a
forum rule and in favor of a hometown rule. As the government noted, a petitioner runs
very little risk of losing a fee award in Vaccine Act cases. The routine award of fees to
non-prevailing petitioners is in harmony with the less adversarial, streamlined process
for Vaccine Act claims. In contrast, the other fee-shifting statutes provide different
incentives by requiring success to qualify for an award.
Because a vaccine petitioner’s attorney will almost always receive fees, this
court’s rule encourages advocates to attempt to leverage the forum rule to receive DC
rates even for work done in Nebraska or Wyoming. The forum will always be
Washington, DC in Vaccine Act cases, even where the Special Master assigned to the
case holds hearings at some remote location, because the Special Master operates as
an extension of the United States Court of Federal Claims. Thus, this court’s analysis
requires the Court of Federal Claims to undertake a complex Davis exception analysis
rather than simply determining the local applicable rates for a reasonable fee award.
2007-5098 2