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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: February 7, 2019)
* * * * * * * * * * * * * *
SUSAN DEAN, * UNPUBLISHED
*
* No. 16-1245V
Petitioner, *
* Chief Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner
Mallori B. Openchowski, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 30, 2016, Susan Dean (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2
(“Vaccine Act”). Petitioner alleged that she “suffered a significant aggravation” of an
unidentified “underlying respiratory condition” as a result of an influenza (“flu”) vaccine prick
percutaneous allergy test performed on October 7, 2013. Petition at Introduction & ¶ 2. On May
29, 2018, the undersigned issued her decision dismissing the case because petitioner failed to
demonstrate that she “received a vaccine as set forth in the Vaccine Injury Table.” Decision at 2.
1
This decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.
§§ 300aa.
On November 15, 2018, petitioner filed an application for attorneys’ fees and costs.
Application for Attorney Fees and Costs (“Fees App.”) (ECF No. 52). Petitioner requests
attorneys’ fees in the amount of $35,107.80 and attorneys’ costs in the amount of $998.43. Id. at
1-2. Pursuant to General Order 9, petitioner warrants that she has personally incurred costs in
the amount of $400.00 in pursuit of this litigation. ECF No. 53. The total request for fees and
cost is $36,506.23. Respondent filed his response on December 6, 2017 indicating that he did
not oppose petitioner’s motion because he believed the statutory requirement for attorneys’ fees
had been met in the instant case. ” Id. at 2. Petitioner did not file a reply.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $35,696.23.
I. Discussion
Under the Vaccine Act, a special master shall award reasonable attorney’s fees and costs
for any petition that results in an award of compensation. 42 U.S.C. §300aa-15(e)(1). When
compensation is not awarded, the special master “may” award reasonable attorneys’ fees and
costs “if the special master or court determines that the petition was brought in good faith and
there was reasonable basis for the claim for which the petition was brought.” Id. at§ 15(e)(3). In
this case, the undersigned finds that both good faith and reasonable basis exist. Petitioner
presented an issue of first impression which required extensive briefing, and the undersigned
does not doubt that petitioner brought her claim in good faith. Accordingly, a final award of
attorney’s fees and costs is reasonable.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
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 and 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 and 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). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d
in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F.3d at 1521.
i. Reasonable Hourly Rates
Petitioner requests various rates for the five Conway, Homer, P.C. attorneys who worked
on her case (Mr. Ronald Homer, Ms. Christina Ciampolillo, Ms. Lauren Faga, Ms. Meredith
Daniels, and Mr. Joseph Pepper) and well as various law clerks and paralegals. Fees App. at 22.
The undersigned has reviewed the requested rates and finds them to be consistent with what has
previously been awarded Conway, Homer, P.C. attorneys and staff. Accordingly, no adjustment
to the requested hourly rates is necessary.
ii. Reasonable Hours Expended
Petitioner requests compensation for 160.8 total hours billed by several attorneys,
paralegals, and law clerks. Fees App. at 20. The undersigned has reviewed the submitted billing
entries, and the majority of the hours appear to be reasonable. However, a small reduction of
hours must be made to the time billed by paralegals. Several entries were made for “prep new
records for summary and electronic filing” either as a separate entry or as part of a larger entry.
See generally Fees App. (billing entries on 7/12/16, 7/13/16, 8/3/16, 8/19/16, 9/30/16, 10/17/16,
11/1/16, 11/14/16, 12/21/16).
It is well-established that the Vaccine Program does not permit billing at any rate for
clerical or administrative work, since such tasks “should be considered as normal overhead office
costs included in the attorneys’ fees rate.” Rochester v. United States, 18 Cl. Ct. 379, 387
(1989). In the Vaccine Program, administrative work includes such tasks as making travel
arrangements, setting up meetings, reviewing invoices, and filing exhibits. Hoskins v. Sec’y of
Health & Human Servs., No. 15-071, 2017 U.S. Claims LEXIS 934, at *6-7 (Fed. Cl. Spec.
Mstr. July 12, 2017) (“Almost all of the paralegal’s time was spent on scanning, paginating, and
filing records—clerical activities for which neither an attorney nor a paralegal should charge.”);
Floyd v. Sec’y of Health & Human Servs., No. 13-556, 2017 U.S. Claims LEXIS 300, at *13-14
(Fed. Cl. Spec. Mstr. Mar. 2, 2017) (“[S]ome of the tasks performed by paralegals were
clerical/secretarial in nature. Examples include . . . filing documents through the CM/ECF
system.”).
In the instant case, it is unclear what task the paralegal is performing by prepping records
for summary and filing. Given that filing exhibits and scanning medical records has consistently
been held to be administrative/clerical work, however, the undersigned finds that the entries in
question most likely are administrative in nature and are therefore non-compensable.
In sum, the undersigned finds it reasonable to reduce the total number paralegal hours
billed by 6 hours. This results in a total reduction of $810.00.3
b. Attorneys’ Costs
Petitioner requests a total of $998.43 in attorneys’ costs. These consist of medical
records costs and postage costs. These are all costs typical of Vaccine Program litigation, and
petitioner has provided adequate documentation substantiating all costs. The undersigned will
therefore reimburse the requested costs in full.
c. Petitioner’s Costs
Pursuant to General Order No. 9, petitioner warrants that she has personally incurred
$400.00 in costs in pursuit of this litigation. This cost is for the filing fee. Fees App. at 39. The
undersigned finds this cost to be reasonable and shall reimburse it in full.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and her counsel as follows:
Requested Attorneys’ Fees: $34,297.80
Awarded Attorneys’ Costs: $998.43
Total Attorney’s Fees and Costs Awarded $35,296.23
Petitioner’s Costs: $400.00
Accordingly, the undersigned awards the following:
1) $35,296.23 in attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Ronald C. Homer; and
2) $400.00 in petitioner’s costs, in the form of a check payable to petitioner.
3
As most of the administrative work was in connection to medical record preparation, it was performed in 2016 at a
rate of $135.00 per hour.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
4
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.