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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1095V
Filed: November 26, 2019
* * * * * * * * * * * * * *
JANE O. WITHAM, * UNPUBLISHED
*
Petitioner, *
*
v. * Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Paul S. Dannenberg, Esq., Huntington, VT, for petitioner.
Glenn A. MacLeod, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On August 15, 2017, Jane O. Witham (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered multiple
left shoulder injuries, including inability to use her left arm, with soreness, tingling, swelling,
intermittent numbness, and acute pain after receiving a pneumococcal conjugate vaccination on
or about July 10, 2015.. See Petition, ECF No. 1. On January 23, 2019, the parties filed a
stipulation, which the undersigned adopted as her Decision awarding compensation on January
24, 2019. ECF No. 27.
On August 4, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
32 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$23,024.76 (representing $22,080.00 in attorneys’ fees and $944.76 in costs). Fees App. at 2.
Pursuant to General Order No. 9, petitioner warrants that she has personally incurred costs of
$50.00 in pursuit of this litigation. Fees App. Ex. 4. Respondent responded to the motion on
August 19, 2019, 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 2-3, ECF
No. 33. Petitioner did not file a reply thereafter.
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, she is entitled to a reasonable award of 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)).
Petitioner requests that her attorney, Mr. Paul Dannenberg, be compensated at a local
Vermont hourly rate of $300.00 per hour for all work performed in this case, from 2016-2019.
Petitioner argues this rate is reasonable because Mr. Dannenberg has previously been compensated
at $275.00 per hour for 2015-2018, and that adjusting for inflation using the BLS CPI inflation
calculator raises the rate to a present value of $301.40. Fees App. at 2 n. 2. This argument must
fail because it has previously been considered by this Court, the Court of Federal Claims, and the
Court of Appeals for the Federal Circuit and has been uniformly rejected. See Chiu v. United
States, 948 F.2d 711, 719 (Fed. Cir. 1991) (ruling that awarding current hourly rates for past work
is “barred by the no-interest rule”.); Simmons v. Sec’y of Health & Human Servs., No. 11-216V,
2016 WL 6156330, at *4 (Fed. Cl. Spec. Mstr. Sept. 28, 2016) (applying the holding in Chiu to
reject a Vaccine Program petitioner’s argument that counsel should be awarded attorneys’ fees
based upon a calculation of net present value). Accordingly, Mr. Dannenberg may not be
compensated at an hourly rate based upon the present value of his previously awarded rates.
The question at bar then is what a reasonable hourly rate for Mr. Dannenberg’s work is.
For the work in this case performed in 2016-2018, the undersigned shall compensate Mr.
Dannenberg at his previously awarded rate of $275.00 per hour. See Spahn v. Sec’y of Health &
Human Servs., 138 Fed. Cl. 252, 264 (Fed. Cl. 2018) (finding $275.00 per hour to be reasonable
for Mr. Dannenberg’s work in 2015-2018). Turning next to a reasonable rate for Mr. Dannenberg’s
2019 work, the undersigned finds that $281.00 per hour is reasonable using several metrics. Use
of the Bureau of Labor Statistics CPI inflation calculator yields an hourly rate of $280.35.3 Use of
Producer Price Index – Offices of Lawyers (“PPI-OL”), the same metric the Office of Special
Masters uses to calculate its annual Attorneys’ Forum Hourly Rate Fee Schedule, yields a proposed
hourly rate of $280.72. Accordingly, $281.00 is a reasonable hourly rate for Mr. Dannenberg in
2019. Application of these rates results in a reduction of $1,737.40.4
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 &
3
This number is derived by using Mr. Dannenberg’s 2018 rate of $275.00 per hour and calculating
inflation from September 2018, the month when the Court of Federal Claims confirmed this rate as
reasonable, to October 2019, the most recent month for which the Department of Labor has data for at the
time of issuance of this Decision. The inflation calculator is available at:
https://www.bls.gov/data/inflation_calculator.htm.
4
For work performed in 2015-2018: ($300.00 per hour requested - $275.00 per hour awarded) * 56.5
hours = $1,412.50.
For work performed in 2019: ($300.00 per hour requested - $281.00 per hour awarded) * 17.1 hours =
$324.90.
3
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
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 requires a minor reduction due to paralegal tasks
billed at attorney rates. The billing records indicate that Mr. Dannenberg performed a number of
tasks typically performed by paralegals (e.g., acquiring medical records, making photocopies,
faxing documents). Accordingly, to achieve rough justice, the undersigned shall reduce the final
award of fees by five percent, resulting in a reduction of $1,017.13.5 Petitioner is thus awarded
final attorneys’ fees of $19,325.47.
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 $944.76 in costs, comprised of obtaining medical records, postage, photocopies, and the
Court’s filing fee. Fees App. Ex. 3. These are typical costs in Vaccine Program cases and appear
reasonable in the undersigned’s experience. Petitioner has provided adequate documentation
supporting all his requested costs. However, the final award of costs must be reduced by $50.00 to
account for the portion of the filing fee paid for by petitioner. Fees App. at 2. Petitioner is therefore
awarded final attorneys’ costs of $894.76.
D. Petitioner’s Costs
Pursuant to General Order No. 9, petitioner warrants that she has personally incurred costs
in the amount of $50.00 as a partial payment of the filing fee. Fees App. at 2, Ex. 4. This cost is
reasonable and the undersigned shall award it in full.
5
($22,080.00 requested - $1,737.40 rate adjustment) * 0.05 = $1,017.13.
4
III. Conclusion
Based on all the above, the undersigned finds that petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested $22,080.00
(Reduction to Fees) - ($2,754.53)
Total Attorneys’ Fees Awarded $19,325.47
Attorneys’ Costs Requested $944.76
(Reduction of Costs) - ($50.00)
Total Attorneys’ Costs Awarded $894.76
Total Attorneys’ Fees and Costs $20,220.23
Petitioner’s Costs $50.00
Total Amount Awarded $20,270.23
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Accordingly, the undersigned
awards the following:
1) A lump sum in the amount of $20,220.23, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney,
Mr. Paul Dannenberg; and
2) A lump sum in the amount of $50.00, 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.6
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
6
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