Auch v. HHS, (Fed. Cl. Spec. Mstr. May 20, 2016) (Corcoran, SM)
The court held that a three-year proceeding was sufficiently protracted to warrant an interim award of fees, and it was not required that Petitioner show that all three Avera factors are met for interim fee awards.
With respect to hourly rates, counsel sought to raise his hourly rates from those previously sought in the program, to rates based on McCulloch. The Court held that the difference in hourly rates between the forum, DC, and Wyoming was “very significant,” thus the Davis exception applied and non-forum/local rates applied. As a general rule of thumb, the court held, any difference over 25 percent meets the very significant standard.
The Court rejected an overstaffing argument, holding that additional attorneys can ensure the overall quality of work performed is better. Ultimately, the test is whether it is “reasonable” to have multiple attorneys on a file, such as whether they unnecessarily duplicated effort or worked in a coordinated manner.
Most tasks paralegal tasks were awarded over objections that the tasks were secretarial in nature. Tasks approved for paralegal billing included “review medical records, bates stamp, print, and put documents in a binder,” although copying the same binder for an expert was deemed secretarial. Organizing and scanning records was also allowed as paralegal time.
The Court held that an interim costs award for $8000 in expert costs was not warranted, and reserved ruling on that item until after the hearing.