Denial of Interim Fees – Litigation not Protracted, No Undue Hardship


Bourche v. HHS, (Fed. Cl. Spec. Mstr. June 24, 2016) (Moran, SM)

The court denied the interim fees request, noting that interim fees are typically only granted when a case has been pending for several years, which would meet the definition of protracted under Avera. Waiting until the end of a case to be paid may be a hardship, but it is not “undue” because it is what is expected. The court also took this opportunity to make a statement to the bar about interim fees generally:

the undersigned wishes to advise attorneys representing petitioners in future cases that they need to justify an interim award with more than a conclusory argument that they are entitled to such an award. More than four years ago, the undersigned anticipated that interim awards would be the rule, not the exception. See Hibbard v. Secʼy of Health & Human Servs., No. 07-446V, 2011 WL 1135894 (Fed. Cl. Spec. Mstr. Mar. 7, 2011). The ensuing four years of experience, a period in which Vaccine Program cases have increased dramatically, has led to a reconsideration of this view. Interim awards remain appropriate in some cases, but interim awards should not be requested routinely.

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