Martin v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0619V
Filed: March 6, 2019
UNPUBLISHED
CRYSTAL MARTIN,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On May 9, 2017, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that she suffered left shoulder injuries as a result of an
influenza vaccine received on October 8, 2015. Petition at 1. On October 22, 2018, the
undersigned issued a decision awarding compensation to petitioner based on the
respondent’s proffer. ECF No. 48.
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 Because this unpublished decision contains a reasoned explanation for the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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
On January 31, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 52. Petitioner requests attorneys’ fees in the amount of $13,012.50 and attorneys’
costs in the amount of $529.50. Id. at 2. In accordance with General Order #9,
petitioner's counsel represents that petitioner incurred no out-of-pocket expenses. Id. at
2. Thus, the total amount requested is $13,542.00.
On February 12, 2019, respondent filed a response to petitioner’s motion. ECF
No. 53. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
Petitioner filed no reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.§
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of
Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in
their fee requests hours that are “excessive, redundant, or otherwise unnecessary.”
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)). 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.” Id. at 1522. Furthermore, the special master may
reduce a fee request sua sponte, apart from objections raised by respondent and
without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not
engaged in a line-by-line analysis of petitioner’s fee application when reducing fees.
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
2
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
II. Attorney Fees
A. Hourly Rates
i. Shealene P. Mancuso
Petitioner requests the following rates for work performed by Shealene Mancuso;
$225 for work performed in June – September 2017; $250 for work performed from
October 2017 – December 2018 and $275 for work performed in 2019. Ms. Mancuso
has previously been awarded the rates of $225 for 2017 and $233 for 2018. See Hyatt
v. Sec’y of Health & Human Servs., No. 17-0650V, 2018 WL 4611618, (Fed. Cl. Spcl.
Mstr. June 22, 2018)3 (setting Ms. Mancuso’s 2018 rate by referencing her 2017 rate).
The undersigned reduces the rates for 2017 & 2018 to those previously awarded and
reduces the request for attorney fees in the amount of $476.30.
Regarding Ms. Mancuso’s requested hourly rate of $275 for work performed in
2019, the undersigned finds the proposed rate excessive based on her overall legal
experience, the quality of work performed, her experience in the Vaccine Program, and
her reputation in the legal community and the community at large. See McCulloch v.
Health and Human Services, No. 09–293V, 2015 WL 5634323 at *17 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a
reasonable forum hourly rate: experience in the Vaccine Program, overall legal
experience, the quality of work performed, and the reputation in the legal community
and community at large). The determination of the amount of reasonable attorneys'
fees is within the special master's discretion. See, e.g., Saxton v. Sec’y of Health &
Human Servs, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters have “wide latitude
in determining the reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of
Health & Human Servs, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover, special masters
are entitled to rely on their own experience and understanding of the issues raised.
Wasson v. Sec’y of Health & Human Servs, 24 Cl. Ct. 482, 483 (Fed. Cl. 1991), aff’d in
relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). Under the Court’s Fee
Schedule, an attorney in the range of 4-7 years of experience are entitled to hourly rates
between $243 - $324 for work performed in 2019. 4
An increase for 2019, based on the Producer Price Index for the “Office of
Lawyers” (PPI-OL), provided by the Department of Labor Bureau of Labor Statistics,
3 Ms. Mancuso was known as Shealene Priscilla Wasserman at the time of the Hyatt decision.
4 The Attorneys’ Fee Schedule for 2019 is available at
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.
pdf.
3
would result in a rate of $250 per hour, which is a more appropriate rate given the
undersigned’s experience and analysis of the McCulloch factors as applied to Ms.
Mancuso. Therefore, the undersigned reduces the fee request by $45.00.
B. Duplicate Entries
Upon review of the billing records submitted, it appears that several entries were
billed twice. On July 10, 2017 two identical entries were billed for .10 hrs each reading
“Email to worker’s compensating adjuster re: WC file request” and July 11, 2017 two
identical entries were billed for 0.10hrs each reading “Email from worker’s
compensating adjuster re: WC file request”. ECF No. 52 at 7-8. The undersigned
reduces the request for attorney fees by $45.00, the amount of the duplicate entries.
III. Attorney Costs
Petitioner requests reimbursement for attorney costs in the amount of $529.50.
After reviewing petitioner’s invoices, the undersigned finds no cause to reduce
petitioner’s’ request and awards the full amount of attorney costs sought.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $12,975.70 5 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Shealene Priscilla Mancuso.
The clerk of the court shall enter judgment in accordance herewith. 6
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5This 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” as well as fees for legal services rendered.
Furthermore, § 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).
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
4