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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1556V
Filed: August 17, 2021
* * * * * * * * * * * * * *
ROBIN COOLEY, * UNPUBLISHED
*
Petitioner, *
*
v. * Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Mari C. Bush, Boulder, CO, for petitioner.
Adriana R. Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On October 18, 2017, Robin Cooley (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered a shoulder
injury related to vaccine administration after receiving an influenza vaccination on December 13,
2016. See Petition (ECF No. 1). On April 7, 2021, the parties filed a stipulation, which the
undersigned adopted as her decision awarding compensation on the same day. (ECF No. 65).
On May 18, 2021, petitioner filed an application for final attorneys’ fees and costs. (“Fees
App.”) (ECF No. 71). Petitioner requests total attorneys’ fees and costs in the amount of
$52,724.13, representing $52,017.70 in attorneys’ fees and $706.43 in costs. Fees App. at 2.
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
Pursuant to General Order No. 9, petitioner states she has personally incurred costs associated
with the prosecution of her petition in the amount of $500.00. (ECF No. 72). Respondent
responded to the motion on June 1, 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. 73). Petitioner filed her reply on June 4, 2021, reiterating her
belief that the requested attorneys’ fees and costs are reasonable.
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, she 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
to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum
2
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. Mari Bush, be compensated at $410.00 per hour
for all work performed in this case, from 2017-2021. The undersigned finds this to be a reasonable
hourly rate for Ms. Bush’s work in 2020 and 2021. However, Ms. Bush has previously billed at
and been awarded $400.00 per hour for her Vaccine Program work through 2019. See Tinoco v.
Sec’y of Health & Human Servs., No., 2019 WL 6125117, at *2 (Fed. Cl. Spec. Mstr. Aug. 29,
2019). The undersigned will therefore compensate Ms. Bush’s work in those years at the rates she
has previously billed at, resulting in a reduction of $614.00.
Petitioner also requests paralegal rates of $150.00 per hour for all work performed in this
case. The undersigned notes that this rate exceeds the maximum paralegal rate prescribed by the
OSM Fee Schedule for 2017 as well was what Ms. Bush’s paralegals have previously been
awarded. Id. (awarding paralegal Alyssa Kittel $125.00 per hour and paralegal Joyce Harris
$145.00 per hour). The undersigned will also award these paralegal rates, resulting in a reduction
of $64.50.
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,
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
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
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).
Upon review, the undersigned finds that a reduction must be made due to the vagueness of
many of the billing entries. Although some of the entries for communication, such as phone calls
and e-mails, contain a brief description of the subject of the communication, most do not. As the
Federal Circuit has previously ruled, disclosure of the general subject matter of billing statements
does not violate attorney-client privilege and billing entries for communication should contain
some indication as to the nature and purpose of the communication. See Avgoustis v. Shinseki, 639
F.3d 1340, 1344-45 (Fed. Cir. 2011).
Additionally, counsel has billed time at attorney rates for tasks which are more paralegal
in nature, such as calendaring deadlines, scanning and mailing documents, and filing documents.
These issues have previously been raised by other special masters concerning Ms. Bush’s billing
practices. See Tinoco, 2019 WL 6125117 at *3-4.
In evaluating a motion for attorney's fees and costs, special masters “need not, and indeed
should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205,
180 L.Ed.2d 45 (2011). The undersigned shall therefore, in the exercise of her discretion in setting
reasonable fees to be awarded, reduce the request for attorney fees by five percent. Petitioner is
therefore awarded final attorneys’ fees of $48,842.25.
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 $706.43 in costs for acquiring medical records, the Court’s filing fee, postage,
photocopies. The undersigned finds these costs reasonable and supported with adequate
documentation. Accordingly, petitioner is entitled to the full amount of costs sought.
Pursuant to General Order No. 9, petitioner has also indicated she has personally incurred
costs of $500.00 for a retainer paid to her counsel, which was offset against the aforementioned
costs incurred. As those costs have been supported through documentation, petitioner’s costs shall
also be reimbursed.
III. Conclusion
4
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned hereby awards the following:
1) a lump sum of $49,548.68, representing reimbursement for petitioner’s attorneys’
fees and costs, in the form of a check payable jointly to petitioner and Ms. Mari Bush;
and
2) a lump sum of $500.00, representing reimbursement for petitioner’s costs, in the form
of a check payable to petitioner.
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).
5