Harper v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
ROOSEVELT HARPER, *
* No. 15-1188V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 15, 2018
*
SECRETARY OF HEALTH * Attorneys’ fees and costs
AND HUMAN SERVICES, *
*
*
Respondent. *
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Ronald C. Homer & Lauren Faga, Conway, Homer, P.C., Boston, MA, for
Petitioner;
Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Roosevelt Harper prevailed in his claim brought in the National Childhood
Vaccine Compensation Program. He is now seeking an award for attorneys’ fees
and costs. He is awarded $51,811.76.
* * *
Represented by attorney Ronald Homer, Mr. Harper filed a petition on
October 13, 2015, alleging that an influenza vaccination caused him to suffer
sensorineural hearing loss. After discussions, the parties resolved this case. The
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website, which is accessible to anyone via the internet. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
parties submitted a stipulation that a decision incorporated. Decision, 2018 WL
4936575 (Mar. 30, 2018).
On May 1, 2018, Mr. Harper filed a motion for an award of attorneys’ fees
and costs. The motion seeks a total of $55,311.76, comprised of $39,367.30 in
attorneys’ fees, $15,826.21 in attorneys’ costs, and $118.25 in costs personally
incurred by Mr. Harper.
On May 8, 2018, the Secretary filed a response to Mr. Harper’s motion. The
Secretary represented that he “is satisfied the statutory requirements for an award
of attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed May 8,
2018, at 2. With respect to amount, the Secretary recommended that “the special
master exercise his discretion” when determining a reasonable award for attorneys’
fees and costs. Id. at 3.
Mr. Harper did not file a reply. This matter is now ripe for adjudication.
* * *
Because Mr. Harper received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the
unresolved question is what is a reasonable amount of attorneys’ fees and costs?
I. Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … 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)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
A. Reasonable Hourly Rate
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
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and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Mr. Harper requests compensation for Attorney Homer, other attorneys at
the firm, as well as several paralegals. For these various attorneys and paralegals,
Mr. Harper suggests various rates for each of the legal professionals during the life
of the case from 2015 to 2018. Based on accumulated experience with fee requests
from the Homer firm, the undersigned finds the proposed rates are reasonable.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See Shea v. Sec’y of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,
2015) (“special masters are not obligated to evaluate an attorney’s billing records
on a line-by-line basis in making the reasonableness determination … and certainly
need not do so when Respondent has not attempted to highlight any specific
alleged inefficiencies”).
Throughout the case, Attorney Homer, partner at the firm, routinely billed
for reviewing all CM/ECF filings received, a vast majority of which are simple
scheduling orders or other standard filings, such as notices of appearance.
Moreover, even for more substantive filings, such as expert reports, Attorney
Homer only billed 0.1 hours, which indicates that he was not conducting the
necessary thorough review of the filings. It is inappropriate for a partner to bill for
mundane tasks, which should properly be billed by a paralegal at most, or for
superficial review of substantive filings. Because of this inappropriate billing, a
reduction of $2,000.00 is reasonable.
The Homer firm also billed time for filing documents in CM/ECF. Filing
documents is a clerical task for which attorneys should not charge. See Guerrero v
Sec'y of Health & Human Servs., No. 12-689, 2015 WL 3745354, at *6 (Fed. Cl.
Spec. Mstr. May 22, 2015), mot. for rev. denied in relevant part, 124 Fed. Cl. 153,
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app. dismissed, No. 2016-1753 (Fed. Cir. Apr. 22, 2016). Thus, a reduction of
$1,500.00 is reasonable.
The other proposed hours are reasonable.
II. Costs
In addition to seeking an award for attorneys’ fees, Mr. Harper seeks
compensation for costs expended, $15,826.21 for attorneys’ costs and $118.25 for
costs personally incurred by Mr. Harper. Mr. Harper’s personally incurred costs
are reasonable. Pet’r’s Mot., exhibit C.
The majority of the attorneys’ costs ($14,500.00) were from expert fees for
Dr. Edwin Monsell. Pet’r’s Mot., exhibit B at 13, 16. (Dr. Monsell’s invoices).
This amount is reasonable.
The remainder of the attorneys’ costs are for routine items, such as medical
records and the filing fee, which are reasonable and adequately documented.
Mr. Harper is awarded all costs in full.
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned GRANTS the petitioner’s motion and finds $51,811.76
($35,867.30 in fees and $15,944.46 in costs) to be a reasonable amount for all
attorneys’ fees and costs incurred. This shall be paid as follows:
a. A lump sum of $51,693.51 in the form of a check made payable to
petitioner and petitioner’s attorney, Ronald C. Homer, for attorneys’
fees and costs available under 42 U.S.C. § 300aa-15(e).
b. A lump sum of $118.25 in the form of a check made payable to
petitioner alone.
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In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
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.
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