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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 21, 2019
* * * * * * * * * * * * * *
ANN FLY, * No. 17-1200V
* Special Master Sanders
*
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Danielle A. Strait, Maglio Christopher and Toale, PA, Seattle, WA, for Petitioner.
Robert P. Coleman, III, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 6, 2017, Ann Fly (“petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). The
petition alleged that the influenza and pneumococcal conjugate vaccines that petitioner received
on September 15, 2014, and September 25, 2015, caused her to suffer from systemic inflammatory
response syndrome (“SIRS”). See Stip. at 1, ECF No. 29. On November 30, 2018, the parties
filed a stipulation for award of compensation, which the undersigned adopted as her decision
awarding damages on December 3, 2018. Decision, ECF No. 30.
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,
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 February 4, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.
36 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $22,695.07
(representing $19,736.20 in fees and $2,958.87 in costs). Fees App. at 2. Pursuant to General
Order No. 9, petitioner has indicated that she has not personally incurred any costs in pursuit of
this litigation. Id. Respondent responded to the motion on February 15, 2019, indicating that he
“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.” Resp’t’s Resp. at 2–3 (ECF No. 37). Petitioner filed a reply
on February 15, 2019, reiterating her belief that the amount requested for attorneys’ fees and costs
is reasonable. Pet’r’s Reply, ECF No. 38.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. 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.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of
2
Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (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 claimed in attorney fee requests . . .
Vaccine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3
Petitioner requests the following rates of compensation for the work of her attorney, Ms.
Danielle Strait: $307.00 per hour for work performed in 2017, $322.00 per hour for work
performed in 2018, and $340.00 per hour for work performed in 2019. Fees App. Ex. 1 at 17.
These rates are consistent with what Ms. Strait has been awarded for her work in the Vaccine
Program. See Kratzer v. Sec’y of Health & Human Servs., No. 17-1209V, 2019 WL 1806626, at
*2 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). Accordingly, no adjustment to the requested rates is
necessary. However, the billing records indicate that Ms. Strait billed 0.5 hours in 2017 at $320.00
per hour as well. Fees App. Ex. 1 at 17. The undersigned will compensate Ms. Strait for these
hours at $307.00 per hour as previously established, resulting in a reduction of $6.50.
b. Hours 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, 3 F.3d at 1521.
Upon review, the undersigned finds the overall hours billed (82.1) to be reasonable.
Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review
the undersigned does not find any of the billing entries to be unreasonable. Respondent has also
not indicated that he finds any of the billing entries to be unreasonable. Accordingly, petitioner is
entitled to final attorneys’ fees in the amount of $19,729.70.
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
3
c. Attorneys’ 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 $2,958.87 in attorneys’ costs. This amount comprises the cost of obtaining medical
records, mailing costs, and the Court’s filing fee. All the costs appear reasonable in the
undersigned’s experience and petitioner has provided adequate documentation for them. Petitioner
is thus entitled to the full amount of costs sought.
II. 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 $19,736.20
(Reduction to Rates) - ($6.50)
Total Attorneys’ Fees Awarded $19,729.70
Attorneys’ Costs Requested $2,958.87
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $2,958.87
Total Attorneys’ Fees and Costs $22,688.57
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 those reductions delineated above, is reasonable. Accordingly, the undersigned
awards the following:
1) A lump sum in the amount of $22,688.57, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney,
Ms. Danielle Strait.
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.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
4