Licon v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-88V
Filed: April 30, 2021
* * * * * * * * * * * * * *
HECTOR A. LICON, JR, * UNPUBLISHED
*
Petitioner, *
*
v. * Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Jessica A. Olins, Maglio Christopher and Toale, PA, Seattle, WA, for petitioner.
Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On January 17, 2019, Hector Licon, Jr. (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that he suffered from
transverse myelitis and idiopathic thrombocytopenic purpura after receiving an influenza
vaccination on November 23, 2016. See Petition, ECF No. 1. On December 16, 2020, the parties
filed a stipulation, which the undersigned adopted as her decision awarding compensation on
December 17, 2020. ECF No. 34.
On January 21, 2021, petitioner filed an application for final attorneys’ fees and costs.
ECF No. 39 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
1
The undersigned intends to post this Decision on the United States Court of Federal Claims' website. This
means the decision will be available to anyone with access to the Internet. In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is required to post it on the United States Court of Federal Claims' website in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
$58,927.44, representing $54,870.90 in attorneys’ fees and $4,056.54 in costs. Fees App. at 1.
Pursuant to General Order No. 9, petitioner states he has not personally incurred any costs
associated with the prosecution of his petition. Fees App. Ex. 3. Respondent responded to the
motion on February 4, 2021, stating “Respondent is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case” and requesting that the undersigned
“exercise her discretion and determine a reasonable award for attorneys’ fees and costs.”
Response at 2, ECF No. 40. Petitioner filed a reply on February 4, 2021, reiterating his belief that
the requested attorneys’ fees and costs are reasonable. ECF No. 41.
This matter is now ripe for consideration.
I. Legal Framework
The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner
was awarded compensation pursuant to a stipulation, he is entitled to a final award of reasonable
attorneys’ fees and costs.
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of
Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys' fees” is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347–48 (quoting
Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward
based on other specific findings. Id.Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl.
201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee
application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).
II. Discussion
A. Reasonable Hourly Rate
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's
attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees
2
to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human
Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See
McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3
Petitioner requests that her attorney, Ms. Jessica Olins, be compensated at the following
hourly rates: $184.00 per hour for work performed in 2018, $199.00 per hour for work performed
in 2019, $225.00 per hour for work performed in 2020, and $275.00 per hour for work performed
in 2021. Fees App. Ex. 1 at 32-33. The requested rate for 2021 exceeds what Ms. Olins has
previously been awarded for her Vaccine Program work in that year. Barrett v. Sec’y of Health &
Human Servs., No. 19-456V, 2021 WL 1201439, at *2 (Fed. Cl. Spec. Mstr. Feb. 26, 2021)
(awarding Ms. Olins $266.00 per hour for 2021). The undersigned agrees with the reasoned
analysis in Barrett and will compensate Ms. Olins’ 2021 work at $266.00 per hour as well. This
results in a reduction of $12.60.
B. Hours Reasonably Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec'y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health &
Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).
Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one-
half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V,
2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is
inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine
Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2
(Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, it is “well within the Special Master's discretion
3
The 2015-2020 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly
rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health &
Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
3
to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work
done.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–
29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).
The overall hours spent on this matter appear to be slightly excessive. The undersigned has
reviewed the billing entries and finds that most filings were reviewed by both Ms. Olins and a
paralegal, leading to a duplication of efforts and an overall excessive amount of time billed for
their review. Additionally, some tasks appeared to have an excessive amount of time billed for
them – as one example, a total 20 hours were expended between Ms. Olins and paralegals in
preparing the instant fees motion.
Upon review, the undersigned finds that a five percent overall reduction to the hours is
necessary to offset the billing issues noted by the undersigned. This results in a reduction of
$2,743.54. Petitioner is therefore awarded final attorneys’ fees of $52,114.76.
C. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $4,056.54 in costs for acquisition of medical records, the Court’s filing fee, and postage.
Fees App. Ex. 2. The undersigned finds these costs reasonable and supported with adequate
documentation. Accordingly, petitioner is entitled to the full amount of costs sought.
III. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned hereby awards a lump sum of $56,171.30, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable
jointly to petitioner and Maglio Christopher & Toale, PA and be forwarded to Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
4