Scott v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 5, 2022
* * * * * * * * * * * * * *
STEPHANIE SCOTT, * UNPUBLISHED
*
Petitioner, * No. 18-1246V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Wei K. Tai, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 12, 2021, Stephanie Scott (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 48). For the reasons
discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of
$32,439.01.
I. Procedural History
On August 20, 2018, Petitioner filed a petition in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that she suffered a right shoulder injury related to
vaccine administration as a result of receiving an influenza vaccination on September 21, 2017.
Petition at 1 (ECF No. 1). On April 13, 2021, the parties filed a stipulation, which I adopted as my
1
I intend to post this Ruling on the United States Court of Federal Claims' website. This means the ruling 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, I agree that the identified material fits within this definition, I will redact such
material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, I am 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
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine
Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
Decision awarding compensation on the same day. (ECF No. 43).
On October 12, 2021, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for her attorney, Ms. Leah Durant, in the total amount of $32,439.01,
representing $30,801.30 in attorneys’ fees and $1,637.71 in costs. Fees App. at 1. Pursuant to
General Order No. 9, Petitioner warrants she has not personally incurred any costs in pursuit of
her claim. Id. Respondent reacted to the fees motion on October 26, 2021, stating that “Respondent
is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Response at 2 (ECF No. 49). Petitioner filed a reply on October 27, 2021, reiterating her
belief that the requested amount of attorneys’ fees and costs was reasonable. Reply at 1. (ECF No.
50).
The matter is now ripe for adjudication.
II. Analysis
Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). Here, because Petitioner was awarded
compensation pursuant to a stipulation, she is entitled to an award of reasonable attorneys’ fees
and costs.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
master may take into account their overall sense of a case and may use estimates when reducing
an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at
*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well
established that an application for fees and costs must sufficiently detail and explain the time billed
so that a special master may determine, from the application and the case file, whether the amount
requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989);
Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and costs
claimed. Id. at *8.
Petitioner requests the following rates for the work of her counsel: for Ms. Leah Durant,
$365.00 per hour for work performed in 2017, $377.00 per hour for work performed in 2018,
$395.00 per hour for work performed in 2020, and $420.00 per hour for work performed in 2021;
and for Mr. Mike Milmoe, $455.00 per hour for work performed in 2018, $464.00 per hour for
2
work performed in 2019, $484.00 per hour for work performed in 2020, and $509.00 per hour for
work performed in 2021. These rates are consistent with what Ms. Durant and Mr. Milmoe have
previously been awarded for their Vaccine Program work, and I find them to be reasonable herein.
See, e.g., Durand v. Sec’y of Health & Human Servs., No. 15-1153V, 2020 WL 639372, at *3
(Fed. Cl. Spec. Mstr. Jan. 16, 2020).
Turning next to the hours billed, I find that the overall hours spent on this matter appear
to be reasonable. The entries reasonably and accurately describe the work performed and the
length of time it took to perform each task. Respondent also has not identified any particular
billing entries as being objectionable or unreasonable. Therefore, the hours requested are
compensated without adjustment. Petitioner is awarded final attorneys’ fees of $30,801.30.
b. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $1,637.71. This amount is comprised of acquiring medical
records, review of those records by Mr. Timothy Hancock, the Court’s filing fee, and postage. Fees
App. Ex. 2 at 2. Petitioner has provided adequate supporting documentation for all the costs, and
they appear to be reasonable upon review. Accordingly, Petitioner is awarded the full amount of
attorneys’ costs sought.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $30,801.30
(Reduction of Fees) -
Total Attorneys’ Fees Awarded $30,801.30
Attorneys’ Costs Requested $1,637.71
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $1,637.71
Total Attorneys’ Fees and Costs $32,439.01
Accordingly, I award a lump sum in the amount of $32,439.01, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and her attorney, Ms. Leah Durant.3
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
3
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/Thomas L. Gowen
Thomas L. Gowen
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