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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
CANDACE M. BERLIN, *
* No. 17-230V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: September 26, 2018
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
******************** *
Nancy R. Meyers, Ward Black Law, Greensboro, NC, for Petitioner;
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Candace Berlin brought a successful petition for compensation under the
National Childhood Vaccine Compensation Program. She now sees an award for
attorneys’ fees and costs. She is awarded $17,404.04.
1
The undersigned intends 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, 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 Because this unpublished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, 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).
* * *
Represented by Ms. Nancy Meyers, Ms. Berlin filed her petition for
compensation on February 17, 2017. Ms. Berlin alleged that the influenza (“flu”)
vaccine that she received on September 10, 2015, which is contained in the
Vaccine Injury Table, 42 C.F.R. § 100.3(a), caused her to suffer injuries, including
left shoulder myositis. The parties were able to informally resolve the case,
agreeing to a joint stipulation on award of compensation that was then adopted.
Decision, issued August 8, 2018.
On August 16, 2018, petitioner moved for reimbursement of attorneys’ fees
and costs, requesting a total of $18,755.44 (representing $17,616.80 in attorneys’
fees and $1,138.64 in attorneys’ costs). Petitioner’s Application for Attorneys’
Fees and Costs (“Fees App.”) at 1. Pursuant to General Order No. 9, petitioner
warrants that has not personally incurred any fees or costs related to the
prosecution of her petition. Fees App. Ex. 2 at 2.
On August 20, 2018, respondent filed his response to the petitioner’s
motion. In his response, respondent did not object to petitioner’s request. Resp’t’s
Resp. at 2. Instead, the respondent stated that he is “satisfied that the statutory and
other legal requirements for an award of attorneys’ fees and costs are met” and
recommended that the undersigned exercise his discretion in determining “a
reasonable award for attorneys’ fees and costs.” Id. at 2-3. On the same day,
petitioner filed a reply concurring with respondent and asking that the undersigned
use exercise his discretion and determine a reasonable award for fees and costs.
Reply at 1.
This matter is now ripe for adjudication.
* * *
Because Ms. Berlin received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Thus, the question
at bar is whether Ms. Berlin’s requested amount is reasonable.
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
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may make an upward or downward departure from the initial calculation of the fee
award based on specific findings. Id. at 1348.
A. Reasonable Hourly Rate
Ms. Berlin requests that her attorney, Ms. Nancy Meyers, be compensated
$350 per hour for work performed in 2016-2017, and $375 per hour for work
performed in 2018. Fees App. at 1. Ms. Berlin also requests that paralegals who
performed work on this case be compensated at a rate of $145 per hour for all work
performed. Id. As these rates are all in accordance with what the undersigned and
other special masters have previously awarded to Ms. Meyers, I find them
reasonable and will award them in full. See Drake v. Sec’y of Health & Human
Servs., No. 16-732V, 2018 WL 4391065, at *2 (Fed. Cl. Spec. Mstr. Aug. 20,
2018).
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 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”).
To facilitate the process of evaluating the reasonableness of an attorney's
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner's
responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys' fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
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effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).
Upon review of the submitted billing statement, the undersigned finds it
reasonable to reduce Petitioner’s fees award due to the excessive amount of
administrative work billed and the block billing from the paralegal assigned to this
case. A total of 2.12 hours were billed by the paralegal for administrative tasks
such as scanning documents, making copies, paying invoices, and mailing
documents.2 Fees App. Ex. 1 at 17-24. It is well established that billing for clerical
and other secretarial work is not permitted in the Vaccine Program. Rochester v.
United States, 18 Cl. Ct. 379,387 (1989) (denying an award of fees for time billed
by a secretary and finding that “[these] services . . . should be considered as normal
overhead office costs included within the attorney’s fee rates”). This results in a
reduction of $307.40.
Additionally, several of the paralegals billing entries present a textbook
example of block billing. One entry of 5.1 hours, on March 12, 2018, reads in full:
Receipt of email from NRM re-Berlin Status report/records. Replied
to same, reply from same. Call to Bond Clinic re- medical records for
Berlin. Was told I would be called back. Email to NRM updating
heron status of records. Call back from Bond clinic, stating that they
would be able to email them to me. Sent test email to Bond clinic.
Receipt of email from associate at Bond clinic (berlin) with test
encrypted email. Created login and replied back to test email.
Additional email to bond clinic, following-up on the record request.
Reply from MR associate, stating that she could only send the pages
30 at a time. Replied to same. Email from NRM, requesting an update
on the status of the records, replied to same. Receipt of 22 emails
from the MR associate at Bond Clinic (berlin) with medical records
attached. Saved the records and prepared them for filing. Records
attachment was too large, so was forced to separate them into eight
parts. Filed with the Court. Prepared Berlin Status report and emailed
2
Examples of these entries include, but are not limited to: 1/09/2017:
Prepared payment to CIOX Health for the Watson Clinic records; 2/17/2017:
Filing of Petition, Cover Sheet, and Exhibit List with US Court of Federal Claims;
2/22/2017: Filing of Statement of Completion with Court; 7/24/2018: Mailed
signed stipulation to Respondent via US mail. Fees App. Ex. 1 at 17-24.
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to NRM for her review. Receipt of email from NRM, asking me to
exit the status report doc so that she could revise it before filing.
Fees App. Ex. 1 at 22. Beyond the fact that several of these tasks are administrative
in nature and are thus not compensable, entries like this make it impossible for the
undersigned to determine how much time the paralegal spent on each task and
whether the amount of time spent on those tasks was reasonable. Similar examples
of block billing occurred on August 2, 2017, January 9, 2018, February 9, 2018,
and March 13, 2018. Id. at 21-24.
Block billing, or billing large amounts of time without sufficient detail as to
what tasks were performed, is clearly disfavored. Broekelschen v. Sec'y of Health
& Human Servs., 07–137V, 2008 WL 5456319 (Fed. Cl. Spec. Mstr. Dec. 17,
2008) (reducing petitioner's attorneys' fees for block billing), mot. for rev. denied,
102 Fed. Cl. 719 (2011); see also Jeffries v. Sec'y of Health & Human Servs., 99–
670V, 2006 WL 3903710 (Fed Cl. Spec. Mstr. Dec. 15, 2006). The undersigned
finds it appropriate to cut all of these entries by 50%, resulting in a reduction of 5.9
hours and a monetary reduction of $855.50.
Finally, there are a handful of entries which simply state that the paralegal
was copied on e-mails between Ms. Meyers and Petitioner. For example, on
February 5, 2018, the billing entry reads “Copied on email from NRM to Traci
Patton re- settlement. Reply from Candace to NRM. Reply from NRM to Candace.
Reply from Traci to NRM. NRM replied to same.” Fees App. Ex. 1 at 21. Beyond
merely being copied on e-mails being drafted by others, it is difficult to ascertain
what value the paralegal added on this matter to warrant billing for it, or how this
is simply not duplicative billing. 3 Similar entries can be found on 12/07/2017,
3/08/2018, 3/18/2018, and 3/19/2018. The undersigned will not compensate
Petitioner for these entries, resulting in a reduction of $188.50.
Accordingly, in light of the aforementioned reductions, Petitioner is entitled
to compensation for attorneys’ fees in the amount of $16,265.40.
3
Ms. Meyers’ billing records indicate that she billed time on February 7 and
8 in 2018 exchanging e-mails with respondent’s counsel and Petitioner regarding
settlement. Fees App. Ex. 1 at 13. Thus, although the dates are not identical, the
undersigned can infer that these billing entries reflect the same e-mails.
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C. Costs Incurred by Ward Black Law
The fees application also asks for reimbursement in the amount of $1,138.64
in for costs incurred by Ward Black Law. Fees App. at 1. 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), aff’d, 33 F.3d 1375 (Fed. Cir.
1994).
Upon review, I find these requested costs to all be reasonable. These costs,
in totality, are $736.80 for medical records, $1.84 for postage, and $400.00 for the
filing fee. Fees App. Ex. 1 at 2. These are all routine costs in Vaccine Program
cases, and Petitioner has provided adequate documentation of these costs.
Accordingly, I will compensate Petitioner in full for all requested costs.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $17,404.04 (representing
$16,265.40 in attorneys’ fees and $1,138.64 in costs) as a lump sum in the form of
a check jointly payable to petitioner and her counsel, Ms. Nancy Meyers, Esq.
In the absence of a timely-filed motion for review (see Appendix B to the
Rules of the Court), the Clerk shall enter judgment in accordance with this
decision. 4
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment
by filing a joint notice renouncing their right to seek review.
6