Fields v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
No. 17-1056V
(Filed Under Seal: May 10, 2022)
(Reissued for Publication: May 18, 2022)
NOT FOR PUBLICATION
)
TERESA K. FIELDS, Executrix for the )
estate of James T. Lawrence, )
)
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
Carol L. Gallagher, Carol L. Gallagher, Esquire LLC, Somers Point, NJ, for Petitioner.
Colleen C. Hartley, Torts Branch, Civil Division, United States Department of Justice,
Washington, D.C., for Respondent. With her on the briefs were Brian M. Boynton, Acting
Assistant Attorney General, C. Salvatore D’alessio, Acting Director, Heather L. Pearlman,
Deputy Director, and Alexis B. Babcock, Assistant Director.
OPINION AND ORDER *
SOLOMSON, Judge.
Petitioner, Teresa K. Fields, acting in her position as the executrix for the estate of
James T. Lawrence, seeks review of Special Master Christian J. Moran’s November 2,
2021, order reducing claimed attorneys’ fees and costs. Petitioner brought this action
pursuant to the National Childhood Vaccine Injury Act of 1986 (Vaccine Act), 42 U.S.C.
§ 300aa-1, et seq., alleging that the influenza (“flu”) vaccine Mr. Lawrence received on
December 16, 2015, caused him to suffer from Guillain–Barré syndrome. Based on a joint
*The Court initially issued this opinion on May 10, 2022, and directed the parties to propose
redactions of confidential information by May 17, 2022. ECF No. 99. The parties did not propose
any redactions. Accordingly, the Court reissues this opinion in its original form.
stipulation, Special Master Moran granted the petition and awarded compensation,
finding that the stipulation proposed a reasonable award of damages for Petitioner’s pain
and suffering. Petitioner subsequently sought attorneys’ fees and costs pursuant to the
Vaccine Act, which the Special Master generally granted, but reduced the claimed
attorneys’ fees by thirty percent due to the vagueness of the billing entries submitted by
Petitioner’s counsel. The Special Master further reduced the claimed fees and costs in
light of particular food costs the Special Master found unreasonable. This case is now
before the Court on Petitioner’s motion for review of the Special Master’s fee decision,
pursuant to 42 U.S.C. § 300aa-12.
For the reasons explained below, the Court grants in part and denies in part
Petitioner’s motion for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2015, Mr. Lawrence received the flu vaccine. ECF No. 1 at 1;
Fields v. Sec’y of Health & Hum. Servs., 2020 WL 5667945, at *1 (Fed. Cl. Aug. 19, 2020). On
August 4, 2017, Mr. Lawrence filed a timely petition for compensation with Respondent,
the Secretary of Health and Human Services, pursuant to 42 U.S.C. § 300aa-11, alleging
that he developed Guillain–Barré syndrome as a result of the vaccine. ECF No. 1 at 1;
Fields, 2020 WL 5667945, at *1.
Petitioner’s counsel commenced work on this case in June 2016, almost fourteen
months before Petitioner filed the original petition for compensation. ECF No. 90-1 at 1.
In support of the petition, Petitioner filed approximately 9,000 pages of medical records.
See ECF No. 82 at 1–2. On May 7, 2018, Respondent informed the Special Master that the
government wished to engage in settlement negotiations. ECF No. 21 at 1.
During the course of settlement negotiations, the parties retained respective life
care planners to assess Mr. Lawrence’s future care needs. ECF No. 23 at 1. On June 27,
2018, the life care planners, accompanied by counsel for the parties and Mr. Lawrence’s
son, visited and evaluated Mr. Lawrence at his nursing home in Louisville, Kentucky.
ECF No. 23 at 1; ECF No. 26 at 1.
On April 9, 2019, Petitioner’s counsel informed the Special Master that Petitioner
intended to pursue court-appointed guardianship for Mr. Lawrence, due to his
deteriorating mental capacity. ECF No. 45 at 1. On September 25, 2019, before
Petitioner’s counsel could establish guardianship, Mr. Lawrence died. ECF No. 65 at 1;
Fields, 2020 WL 5667945, at *1. Although the parties had been close to reaching a tentative
settlement, Respondent requested an updated settlement demand from Mr. Lawrence’s
estate (following his death) to clarify if any additional damages were sought, including
the death benefit. See ECF No. 62 at 1. On November 20, 2019, Petitioner, the executrix
of Mr. Lawrence’s estate, replaced Mr. Lawrence as petitioner in this matter. ECF No. 61
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at 1; Fields, 2020 WL 5667945, at *1. On April 28, 2020, Petitioner filed an amended petition
to include Mr. Lawrence’s death as allegedly related to his receipt of the flu vaccine. ECF
No. 77 at 1–2; Fields, 2020 WL 5667945, at *1.
On May 5, 2020, the parties informed the Special Master that they had reached a
tentative settlement agreement. See ECF No. 80. On August 19, 2020, the parties agreed
to a joint stipulation to settle the case, ECF No. 85, which the Special Master approved,
ECF No. 86; Fields, 2020 WL 5667945, at *1.
On September 10, 2020, Petitioner filed a motion for reasonable attorneys’ fees and
costs for the services of her attorney, Ms. Carol Gallagher, pursuant to 42 U.S.C.
§ 300aa-15(e)(1), seeking a total of $114,756.71 ($103,287.65 in attorneys’ fees and
$11,466.06 in attorneys’ costs). ECF No. 90 at 3. That same day, Respondent filed a
response to Petitioner’s motion for attorneys’ fees and costs. ECF No. 91. In the response,
Respondent represented that it “is satisfied [that] the statutory requirements for an award
of attorneys’ fees and costs [were] met” and requested that the Special Master “exercise
[his] discretion and determine a reasonable award.” Id. at 2–3.
On November 2, 2021, the Special Master awarded Petitioner $83,341.89 in
attorneys’ fees and costs — $31,414.82 less than Petitioner had requested. ECF No. 93
(“Fee Decision”) at 5. As to fees, the Special Master approved Ms. Gallagher’s hourly
rates, but reduced the total number of hours billed by thirty percent, finding that “an
overall reduction to the number of hours billed is warranted.” Id. at 3. The Special Master
explained his reasoning as follows:
The reduction is necessary due to the amount of
correspondence billed and its vagueness. . . . In the instant
case, most of the billing entries concerning communication do
not contain any indication of the topic of that communication,
making it difficult for the undersigned to determine whether
such communication was necessary and reasonable. This is
especially pertinent in a case such as this one, where the legal
side was relatively routine but the protracted nature of
establishing a guardianship for Mr. Lawrence, both before
and after his death, would necessitate more communication
with the client and her family than would typically be
expected. Therefore, while the undersigned would expect a
greater than average amount of communication with various
individuals in this case, the overall amount of time for
communication still appears excessive, and the vagueness of
the entries frustrates the undersigned’s ability to then
determine whether the communication was reasonable and
necessary.
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The undersigned also notes that infrequent entries
throughout the billing records are non-compensable for
various reasons — some communication entries are plainly
excessive, such as one-tenth of an hour billed to leave a voice
mail or to attempt a call which received a disconnected
number notice, while other entries involve correspondence
with records providers, which in the undersigned’s
experience are typically paralegal work at best (requesting
records, checking on the status of overdue requested records)
or clerical (handling payment of records).
In sum, the overall number of hours billed at an attorney’s
rate (269.6) is excessive in the undersigned’s experience given
the complexity and duration of Ms. Fields’ petition.
Ms. Gallagher’s excessive billing on numerous occasions,
particularly regarding excessive communication with her
clients, has led to a reduction in requested amounts. See
Rocha v. Sec’y of Health & Human Servs., No. 16-241V, 2020 WL
3792211, at *3–4 (Fed. Cl. Spec. Mstr. Jun. 11, 2020); [De
Souza v. Sec’y of Health & Hum. Servs., 141 Fed. Cl. 338, 346–47
(2018)]. Upon review[,] the undersigned finds a thirty percent
reduction to the hours billed necessary in order to achieve
“rough justice” resulting in a reduction of $30,986.29.
Fee Decision at 3–4.
With respect to costs, the Special Master also refused to award Petitioner all the
costs claimed. In particular, the Special Master reduced the amount billed for food and
beverage costs:
A total of $573.03 for food and beverages was billed over the
course of three days while Ms. Gallagher was in Louisville,
Kentucky to perform a site visit with [the life care planner]
(Ms. Gallagher arrived in Louisville on June 26, 2018, and left
on June 28, 2018). No justification has been offered as to why
such high food charges were necessary, and the undersigned
finds the total amount unreasonable. The GSA per diem for
Louisville, Kentucky in 2018 was $59.00 for a full day and
$44.25 on the first and last day of travel. The undersigned will
reimburse petitioner these amounts for the meals — thus a
reasonable amount for Ms. Gallagher’s meals is $147.50.
Id. at 5 (citation omitted) (footnote omitted).
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On November 30, 2021, Petitioner filed a motion for review of the Special Master’s
decision regarding attorneys’ fees and costs, challenging (1) the Special Master’s decision
to reduce the number of hours billed, and (2) the Special Master’s decision to reduce the
costs for meals charged. ECF No. 96 (“Pet. Mot. for Rev.”) at 1. Respondent filed a
response on December 23, 2021. ECF No. 98 (“Sec. Resp.”).
II. JURISDICTION AND STANDARD OF REVIEW
This Court possesses jurisdiction, pursuant to the Vaccine Act, to review a special
master’s determination of attorneys’ fees and costs upon the filing of a petition from
either party within thirty days of that decision. 42 U.S.C. § 300aa-12(e)(1). On review,
the Court may:
(A) uphold the findings of fact and conclusions of law of the
special master and sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the
special master found to be arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law and
issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further
action in accordance with the court’s direction.
Id. § 300aa-12(e)(2).
This Court reviews the decision of a special master to determine if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Avera v.
Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008) (quoting 42 U.S.C.
§ 300aa–12(e)(2)(B)). A special master’s determination of reasonable attorneys’ fees and
costs is a discretionary ruling that this Court reviews under the abuse of discretion
standard. Hall v. Sec’y of Health & Hum. Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011). While
a special master’s decision “is entitled to deference,” Morse v. Sec’y of Health & Hum. Servs.,
93 Fed. Cl. 780, 783 (2010), this Court will find that a special master has abused his
discretion if his decision: “(1) is clearly unreasonable, arbitrary, or fanciful; (2) is based
on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or
(4) follows from a record that contains no evidence on which the [special master] could
rationally base [his] decision,” Genentech, Inc. v. U.S. Int’l Trade Comm’n, 122 F.3d 1409,
1415 (Fed. Cir. 1997).
III. DISCUSSION
Petitioner challenges both (1) the Special Master’s decision to reduce the number
of hours billed for the services of Ms. Gallagher by thirty percent, and (2) the Special
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Master’s decision to deny compensation for certain meal charges. This Court reviews
each of these challenges in turn.
A. The Special Master Abused His Discretion in Reducing Attorneys’ Fees by
Thirty Percent
1. The Special Master Properly Applied the Lodestar Method
The Vaccine Act allows recovery of “reasonable attorneys’ fees, and other costs.” 42
U.S.C. §§ 300aa-15(e)(1) (emphasis added). In determining what constitutes “reasonable
attorneys’ fees,” the United States Court of Appeals for the Federal Circuit, this Court’s
immediate appellate court, has “endorsed the use of the lodestar approach.” Avera, 515
F.3d at 1347. Under the lodestar method, the special master must “first determine[] an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate,’” and “[o]nce a
[special master] makes that initial calculation, [the special master] may then make an
upward or downward departure to the fee award” where appropriate. Id. at 1347–48
(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
As discussed supra Section II, a “special master is afforded wide discretion in
determining the reasonableness of costs, as well as attorneys’ fees.” Perreira v. Sec’y of
Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
The lodestar method thus allows a special master to use his discretion and reduce a fee
award by excluding hours billed that were not “reasonably expended on the litigation.”
Avera, 515 F.3d at 1347–38 (quoting Blum, 465 U.S. at 888). Hours that are not “reasonably
expended” include hours that are “excessive, redundant or otherwise unnecessary.”
Saxton ex rel Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Furthermore, because an
attorney’s billing statements are valid only if they “describe the purpose of the activity
sufficiently to determine if the charges [a]re reasonable,” a special master may exclude
all fees charged for vague billing entries. Avgoustis v. Shinseki, 639 F.3d 1340, 1341, 1344–
45 (Fed. Cir. 2011); see also Hensley, 461 U.S. at 433 (“Where the documentation of hours
is inadequate, the district court may reduce the award accordingly.”).
In addition, “administrative, clerical, and secretarial tasks that could be performed
by someone who is not an attorney or paralegal are not compensable.” Adkins v. United
States, 154 Fed. Cl. 290, 309 (2021). Likewise, an attorney may not bill for paralegal work
at an attorney’s rate. See Action on Smoking & Health v. Civ. Aeronautics Bd., 724 F.2d 211,
220–21 (D.C. Cir. 1984) (“Hours are not reasonably expended if an attorney . . . performs
tasks that are normally performed by paralegals, clerical personnel or other non-
attorneys. If an application contains hours unreasonably expended, a court must make
appropriate reductions.”). As the Supreme Court established in Fox v. Vice, 563 U.S. 826,
838 (2011), in determining a proper fee award, “courts need not, and indeed should not,
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become green-eyeshade accountants,” as the goal in awarding attorneys’ fees is to achieve
“rough justice,” not “auditing perfection.”
Here, Petitioner argues that: (1) the Special Master “devised his own test” that
was inconsistent with the lodestar method, Pet. Mot. for Rev. at 8, 14, and that the Special
Master’s reliance on “rough justice” to determine her fee award was “an aberration of the
lodestar method,” id. at 8; and (2) the Special Master is required to analyze each fee
request in a consistent manner and “apply[] a uniform and reasonable standard of
evaluation,” id. at 15–16, 19. The Court finds that Petitioner’s arguments fail in the face
of the applicable standards.
First, despite Petitioner’s assertions to the contrary, the Special Master did not
“devise[] his own test” in determining reasonable attorneys’ fees, id. at 8, 14; rather, the
Special Master correctly applied the lodestar method. Specifically, the Special Master
first “reviewed the requested rates and [found] them to be reasonable and consistent with
what special masters have previously awarded to Ms. Gallagher for her Vaccine Program
work,” Fee Decision at 3, in accordance with the first step of the lodestar method, see
Avera, 515 F.3d at 1347–48. Next, the Special Master reviewed the number of hours billed
by Ms. Gallagher and determined that “an overall reduction to the number of hours billed
[was] warranted . . . due to the amount of correspondence billed and its vagueness.” Fee
Decision at 3. Such a finding was appropriate, as billing entries that do not adequately
specify the purpose of the attorney’s activity are non-compensable. See Avgoustis, 639
F.3d. at 1344–45. Moreover, the Special Master’s acted within his discretion in relying on
“rough justice” in his determination of an appropriate fee award, as a special master
“may take into account [his] overall sense of a suit[] and may use estimates in calculating
and allocating an attorney’s time.” Fox, 563 U.S. at 838. Such “rough justice” is
particularly appropriate in a case like this one, where the attorney’s correspondence is
“excessive, and the vagueness of the entries frustrates [the special master’s] ability to . . .
determine whether the communication was reasonable and necessary.” Fee Decision at
4; see Hensley, 461 U.S. at 434 (holding that “unnecessary” expenses are not reasonable);
Saxton, 3 F.3d at 1521 (same).
The Special Master also reduced the award based on “infrequent entries” for
communications that were “plainly excessive, such as one-tenth of an hour billed to leave
a voice mail or to attempt a call which received a disconnected number notice.” Fee
Decision at 4. Billing entries encompassing an unreasonably long amount of time for the
task performed therein are also considered “excessive” and thus unreasonable. See
Hensley, 461 U.S. at 434. Finally, the Special Master found that “other entries involve
correspondence with records providers, which[,] in the undersigned’s experience[,] are
typically paralegal work at best (requesting records, checking on the status of overdue
requested records) or clerical (handling payment of records).” Fee Decision at 4. Because
the Special Master’s reduction of fees was based on billing entries that were for “paralegal
work” or “clerical [work],” id., which are considered hours not “reasonably expended”
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— and thus unreasonable billing entries — the reduction was exercised within the bounds
of the lodestar method, see Adkins, 154 Fed. Cl. at 309; Action on Smoking & Health, 724
F.2d at 220–21; Hensley, 461 U.S. at 434.
Second, when assessing an attorney’s billing records to determine the appropriate
fee award, including whether a reduction in the number of hours billed is warranted, a
special master is “not ‘required to base his decision[] . . . on a line-by-line evaluation of
the fee application.’” Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 206 (2009)
(quoting Carter v. Sec’y of the Dep’t of Health & Hum. Servs., 2007 WL 2241877, at *3 (Fed.
Cl. Spec. Mstr. July 13, 2007)). In that regard, a special master may impose an across-the-
board percentage reduction in a fee award. See Hensley, 461 U.S. at 438 n.13 (reducing the
fees of an attorney by thirty percent “to account for his inexperience and failure to keep
contemporaneous time records”); see also New York State Ass’n for Retarded Child., Inc. v.
Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) (“[C]ourts have endorsed percentage cuts as a
practical means of trimming fat from a fee application.”).
Thus, the Special Master was not required to conduct a line-by-line evaluation of
Petitioner’s fee application, see Sabella, 86 Fed. Cl. at 206, like Petitioner notes the Special
Master did in a previous case, 1 and he may employ an across-the-board reduction of an
attorney’s hours, see Hensley, 461 U.S. at 438 n.13. Moreover, even if the Special Master
had performed a line-by-line analysis of the billing record in determining prior fee
awards, the Special Master was under no obligation to use the same analytical method in
determining subsequent fee awards, as “each attorney fee determination stands or falls
on its own merits.” De Souza, 141 Fed. Cl. at 347 (2018) (“[T]he fact that the special master
was more tolerant of some of the vague entries billed in Kirdzik[, 2016 WL 4608171, at *2]
does not render his more rigorous approach in this case an arbitrary one.”); see also
Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998) (“Special masters are
[not] bound by their own decisions . . . .”), aff’d, 191 F.3d 1344 (Fed. Cir. 1999).
In sum, the Court concludes that the Special Master appropriately applied the
lodestar method.
2. The Special Master Failed to Provide Sufficient Reasoning to Justify His
Thirty Percent Reduction in Attorneys’ Fees
Next, Petitioner argues that the Special Master failed to provide a sufficient
explanation for his fee reduction. Pet. Mot. for Rev. at 16–19. Petitioner’s argument is
1Pet. Mot. for Rev. at 15–16, 21 (arguing that the Special Master conducted a line-by-line analysis
of Ms. Gallagher’s billing records in Kirdzik v. Sec’y of Health, 2016 WL 4608171, at *2 (Fed. Cl.
Spec. Mstr. Aug. 10, 2016), and found her records “sufficiently detailed,” and, therefore, given
that “Petitioner’s timesheets in the instant case are set forth in the same manner and with the
same particularity as in Kirdzik,” the Special Master’s failure to conduct a similar analysis here “is
tantamount to [the Special Master] exercising his own will”).
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twofold. First, Petitioner contends that the “[S]pecial [M]aster prejudged [P]etitioner’s
fees and categorically cut or reduced certain types of fees without adequately considering
the facts and circumstances of the instant case and without adequately citing to more
particular billing entries.” Id. at 19. Second, Petitioner asserts that the Special Master’s
fee reduction of thirty percent was unwarranted because the billing entry categories the
Special Master identified — those that were either (1) “plainly excessive” in light of the
task performed, (2) paralegal work charged at an attorney’s rate, or (3) clerical work
charged at an attorney’s rate — amount to less than ten percent of the total hours Ms.
Gallagher billed. Id. at 17.
The Court finds that the Special Master failed to provide sufficient reasoning for
his thirty percent reduction to the fee award.
a. The Special Master Failed to Provide “Concise but Clear” Reasoning
for the Thirty Percent Fee Reduction
When reducing a fee award, a special master must provide a “concise but clear”
explanation for the reduction and should offer specific examples from the attorney’s
billing record to support the extent of the reduction. Hensley, 461 U.S. at 437; see also
Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 112 (2017) (finding that the special
master did not abuse his discretion when he provided specific examples of billing entries
that were vague); Guerrero v. Sec’y of Health & Hum. Servs., 120 Fed. Cl. 474, 481 (2015)
(finding that the special master abused his discretion when he failed to “cite any instance
of overbilling[] or identify a time period when billing levels were inappropriate in light
of the tasks done”). But see De Souza v. Sec’y of Health & Hum. Servs., 2018 WL 4624249, at
*3 (Fed. Cl. Spec. Mstr. July 3, 2018) (reducing attorneys’ fees by thirty-five percent while
providing only that “many entries are something like ‘[p]reparation of e-mail to client’”),
aff’d, 141 Fed. Cl. 338.
Fee explanations “need not be painstaking, . . . but at a bare minimum, the order
awarding fees, read against the backdrop of the record as a whole, must expose the
[special master]’s thought process and show the method and manner underlying [his]
decisional calculus.” Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st
Cir. 1997). The special master need not, however, “identify and justify each disallowed
hour.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005). Furthermore, a
special master may rely on his prior experience, including his experience with a particular
attorney and that attorney’s relative experience with the vaccine program, in determining
the number of hours that are reasonable, see Saxton, 3 F.3d. at 1520–21, provided that the
special master articulates the “relevant experience and the reasoning that [he] used, based
on that experience, to reach [his] conclusion,” Wasson ex rel Wasson v. Sec’y of Health &
Human Servs., 24 Cl. Ct. 482, 486 (1991). Nevertheless, when a special master employs an
across-the-board or percentage reduction, the decision “is subject to heightened
scrutiny.” Guerrero, 120 Fed. Cl. at 481 (quoting Int’l Rectifier Corp. v. Samsung Elecs. Co.,
9
424 F.3d 1235, 1239 (Fed. Cir. 2005)); see also Loranger v. Stierheim, 10 F.3d 776, 783 (11th
Cir. 1994) (“[T]he utility of across-the-board percentage cuts . . . does not relieve district
courts of the requirement to concisely but clearly articulate their reasons for selecting
specific percentage reductions.” (citation omitted)).
Here, the Special Master employed an across-the-board reduction to Petitioner’s
request for attorneys’ fees. In the fee decision, however, the Special Master failed to
provide a single example of a vague billing entry to justify his thirty percent reduction,
noting merely that the “overall amount of . . . communication . . . [was] excessive,” and
that “the vagueness of the entries frustrate[d] [his] ability to then determine whether the
communication was reasonable and necessary.” Fee Decision at 4. While the Special
Master later provided examples of billing entries that he viewed as “non-compensable
for various reasons,” he also noted that such entries were “infrequent,” and thus did not
account for the vast majority of the fee reduction. Id. Finally, the Special Master asserted
that “the overall number of hours billed at an attorney’s rate is excessive . . . given the
complexity and duration of Ms. Fields’ petition,” id., but he failed to justify or provide
any precedent as to why he thought those hours were excessive to the extent that they
warranted a thirty percent reduction, see Guerrero, 120 Fed. Cl. at 481; Loranger, 10 F.3d at
783. Instead, the Special Master relied on Ms. Gallagher’s history of “excessive billing”
and “excessive communication with her clients” in previous cases to justify the thirty
percent reduction. Fee Decision at 4.
Additionally, while the Special Master relied on his experience in determining that
a fee reduction was warranted, he did not articulate the “relevant experience and the
reasoning that [he] used, based on that experience, to reach [his] conclusion” that a thirty
percent reduction was warranted. See Wasson, 24 Cl. Ct. at 486. Instead, the Special
Master simply noted that “the overall number of hours billed at an attorney’s rate (269.6)
is excessive in the undersigned’s experience given the complexity and duration of
Ms. Fields’ petition” and that Ms. Gallagher has had her fees reduced in the past. Fee
Decision at 4. The Special Master, however, failed to provide any sort of barometer for
the number of hours that would be considered reasonable in a case of comparable
difficulty. Id. The Special Master thus failed to provide a “concise but clear” explanation
for his thirty percent fee reduction. Hensley, 461 U.S. at 437.
Accordingly, the Court finds that the Special Master failed to provide a sufficient
explanation for the thirty percent reduction.
b. The Billing Record Does Not Support a Reduction of Thirty Percent
A special master abuses his discretion when “the record contains no evidence on
which the . . . [special master] rationally could have based his decision.” Murphy v. Sec’y
of Dep’t of Health & Hum. Servs., 30 Fed. Cl. 60, 61 (1993) (alterations in original) (quoting
Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991)), aff’d, 48 F.3d 1236 (Fed. Cir.
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1995). This Court may conduct its own review of the billing record to determine if the
extent of the special master’s reduction is supported by the record. Cf. De Souza, 141 Fed.
Cl. at 346 (upholding the special master’s thirty-five percent across-the-board reduction
in attorneys’ hours when the court’s own review of the record revealed that over thirty percent
of the hours billed contained vague correspondence entries). As discussed above, a
special master may exclude vague billing entries in his decisional calculus. See Avgoustis,
639 F.3d. at 1344–45. Notably, however, this Court has held that an attorney’s “lack of
detail” in her billing entries can be “cured by cross-checking the time sheets . . . and by
reviewing docket entries to determine what specific filings were being made at particular
times.” Applegate v. United States, 52 Fed. Cl. 751, 769 (2002), aff’d, 70 F. App’x 582 (Fed.
Cir. 2003).
This Court has examined Ms. Gallagher’s billing record and finds that the Special
Master’s across-the-board, thirty percent reduction to hours billed cannot be reconciled
with the record. In reviewing the Special Master’s adjustment, the Court attempted to
replicate the Special Master’s analysis, and thus excluded from reimbursement billing
entries that are deficient, based upon the following categories the Special Master
identified: (1) “entries concerning communication [that] do not contain any indication of
the topic of that communication”; (2) entries that are “plainly excessive,” such as one-
tenth of an hour billed for text messages, voicemails, or unanswered phone calls;
(3) entries that “involve correspondence with records providers” (aside from
communications threatening a subpoena or a request for a revision of the Medicaid lien
amount); (4) entries considered “paralegal work,” including “requesting records,
checking on the status of overdue requested records”; and (5) entries for “clerical” work,
including “handling payment of records.” Fee Decision at 4. Additionally, the Court
disqualified any vague billing entries for which the purpose could not be easily
ascertained from the preceding entries or from the case’s docket sheet. See Applegate, 52
Fed. Cl. at 769.
Even excluding as not compensable the hours (or a significant percentage of the
hours) associated with each of the foregoing categories, the Court could only substantiate
a reduction of approximately 15 percent of Petitioner’s requested attorneys’ fees, far short
of the Special Master’s blanket, thirty percent reduction. Therefore, and in the absence of
a more detailed explanation from the Special Master, the Court finds that the Special
Master’s thirty percent reduction of Petitioner’s attorneys’ fees was grossly excessive and,
thus, an abuse of discretion.
Accordingly, the Court grants Petitioner’s motion for review of the Special
Master’s reduction in attorneys’ fees. The Court will remand this issue to the Special
Master for further consideration.
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B. The Special Master Did Not Abuse His Discretion in Reducing Attorneys’
Costs
Petitioner’s second challenge pertains to the Special Master’s reduction in
Petitioner’s requested attorneys’ costs. Petitioner argues that the Special Master acted
“arbitrar[ily] in failing to consider the totality of [P]etitioner’s costs.” Pet. Mot. for Rev.
at 10. Specifically, Petitioner argues that the Special Master should have been more
forgiving in his award of attorneys’ costs because “[P]etitioner did not submit any costs
for a flight from New Jersey to Louisville, Kentucky, or for a rental car.” Id. Additionally,
Petitioner contests the Special Master’s determination that the total costs for food charges
were unreasonable, because, by her estimation, “$573.03 for two people for 3 days of
meals[, which] amounts to $95.50 per day for two meals a day and even less for three
meals per day,” is reasonable. Id. The Court finds that the Special Master’s reduction in
Petitioner’s food costs was not an abuse of discretion.
As indicated above, a special master is “afforded wide discretion in determining
the reasonableness of costs.” Perreira, 27 Fed. Cl. at 34. Thus, a special master has
discretion to determine whether an attorney’s food costs are reasonable. See id.
Here, the Special Master found that “[n]o justification [had] been offered as to why
such high food charges were necessary,” and he thus determined that “the total amount
[was] unreasonable.” Fee Decision at 5. Furthermore, in reducing Petitioner’s food costs,
the Special Master relied on the 2018 GSA per diem rate for food costs in Louisville,
Kentucky and, accordingly, reduced Petitioner’s food costs by $425.53. Id. Because the
Special Master’s reliance on an objective metric can hardly qualify as an abuse of
discretion, the Court affirms the Special Master’s decision to reduce Petitioner’s food
costs to $147.50. See Perreira, 27 Fed. Cl. at 34.
Accordingly, the Court denies Petitioner’s motion for review of the Special
Master’s reduction in attorneys’ costs.
C. Petitioner Is Entitled to an Award of Attorneys’ Fees for Fees Incurred in the
Preparation of the Motion for Review
Petitioner requests $9,094.80 in reimbursement for attorneys’ fees incurred in the
preparation of her motion for review. Pet. Mot. for Rev. at 23. The requested amount
represents 21.45 hours of work performed at a rate of $424 per hour. Id. at 26 (Exhibit B).
Respondent argues that the Court should decline to award any fees related to this appeal,
contending that Petitioner’s appeal represents an attempt to “challenge[] purely
discretionary findings by the special master.” Sec. Resp. at 9.
Pursuant to the Vaccine Act, this Court may award petitioners compensation in
“an amount to cover (A) reasonable attorneys’ fees, and (B) other costs, incurred in any
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proceeding on such petition.” 42 U.S.C. § 300aa-15(e)(1) (emphasis added); see also Rule
34(b) of the Vaccine Rules of the United States Court of Federal Claims (“Following
review by an assigned judge of a special master’s decision on attorney’s fees and costs
under Vaccine Rule 13, a request for any additional fees and costs relating to such review
will be decided either by: (1) the special master if the case is on remand; or (2) the
assigned judge if the case is not on remand, although the assigned judge may remand the
case to the special master for consideration of such motion.”); Guerrero, 120 Fed. Cl. at 485
(awarding Petitioner an interim award to cover her attorneys’ fees related to her motion
for review).
In light of this Court’s remand for the Special Master to reconsider an award of
attorneys’ fees, the Special Master shall also consider an award of reasonable attorneys’
fees incurred in the preparation of Petitioner’s motion for review consistent with the
lodestar method. See Vaccine Rule 34(b).
IV. CONCLUSION
Based on the foregoing, the Court concludes that the Special Master abused his
discretion in reducing Petitioner’s attorneys’ fees. The Court finds, however, that the
Special Master did not abuse his discretion in reducing Petitioner’s attorneys’ costs.
Accordingly, the Court hereby GRANTS IN PART and DENIES IN PART
Petitioner’s motion for review. The Special Master’s decision is VACATED with respect
to the award of attorneys’ fees but AFFIRMED in all other respects. The Court
REMANDS this case to the Special Master for consideration of the appropriate attorneys’
fees award consistent with this opinion.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
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