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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
GERALD PARKER, *
*
* No. 19-1233V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: June 23, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs.
*
Respondent. *
*********************
Michael A. Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA,
for petitioner;
Catherine E. Stolar, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On August 16, 2021, petitioner Gerald Parker moved for final attorneys’ fees
and costs. He is awarded $31,115.19.
* * *
1
Because this published decision 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). This posting means the decision will be available to
anyone with access to the Internet. In accordance with Vaccine Rule 18(b), the
parties have 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.
On August 19, 2019, petitioner filed for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34. The
petition alleged that the influenza (“flu”) vaccine he received on November 15,
2018, caused him to develop cellulitis. After petitioner filed initial medical
records, respondent filed his Rule 4(c) report on July 9, 2020, contesting
entitlement. Shortly after the filing of the Rule 4(c) report, petitioner’s attorney,
Mr. Martin Martinez, passed away. The case was referred to Mr. Michael
Firestone, who was substituted as counsel of record on September 9, 2020. A
status conference was held on October 19, 2020, during which petitioner requested
60 days to file outstanding medical records identified by respondent, as well as
updated medical records. On December 15, 2020, petitioner moved for a decision
dismissing his petition, stating that a review of the facts and science revealed that
petitioner would “be unable to prove that he is entitled to compensation.” Pet’r’s
Mot., filed Dec. 15, 2020, at ¶ 1. On April 14, 2021, the undersigned issued his
decision dismissing the petition for insufficient proof. Decision, 2021 WL
1884819 (Fed. Cl. Spec. Mstr. Apr. 14, 2021).
On August 16, 2021, petitioner moved for final attorneys’ fees and
costs. Pet’r’s Mot., filed Aug. 16, 2021. For fees and costs associated with Mr.
Firestone’s work, petitioner requests attorneys’ fees of $7,124.42 and attorneys’
costs of $24.77 for a total request of $7,149.19. Pet’r’s Mot. at 1. For Mr.
Martinez’s work, petitioner requests $25,816.00 in attorneys’ fees. Pet’r’s Status
Rep., filed June 6, 2022. Pursuant to General Order No. 9, petitioner states that he
has not personally incurred any costs in pursuit of this litigation. On August 28,
2021, respondent filed a response to petitioner’s motion. Resp’t’s Resp., filed
Aug. 28, 2021. Respondent argues, “Neither the Vaccine Act nor Vaccine Rule 13
requires respondent to file a response to a request by a petitioner for an award of
attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Id. at 2. Additionally, he recommends that the undersigned
“exercise [his] discretion” when determining a reasonable award for attorneys’ fees
and costs. Id. at 3. Petitioner did not file a reply.
* * *
The burden is on the petitioner to provide sufficient evidence to support a
request for attorneys’ fees and costs. See, e.g., Scharfenberger v. Sec’y of Health
& Hum. Servs., 124 Fed. Cl. 225, 234 (2015). The Secretary is not required to
make objections to requests for fees and costs. Id. Accordingly, special masters
are “not limited to objections raised by respondent.” Id. (quoting Lamar v. Sec’y
2
of Health & Hum. Servs., No. 99-538V, 2008 WL 3845165, at *5 (Fed. Cl. Spec.
Mstr. July 30, 2008)).
The Secretary previously provided objections to requests for attorneys’ fees
and costs. See Dominguez v. Sec’y of Health & Hum. Servs., 136 Fed. Cl. 779,
781 (2018). However, the Secretary no longer routinely provides objections to fee
motions due to lack of resources and desire to avoid further litigation. See id.Given the Secretary’s lack of substantive participation in fee motions, special
masters have an independent duty to evaluate them for their reasonableness. See
id. at 785; McIntosh v. Secʼy of Health & Hum. Servs., 139 Fed. Cl. 238 (2018);
Spahn v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 252, 262-63 (2018).
Therefore, the undersigned has independently reviewed the fee application for its
reasonableness. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1520
(Fed. Cir. 1993); Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994) (affording special masters discretion
to determine the reasonableness of requests of attorneys’ fees and costs); see also
Saxton, 3 F.3d at 1521; Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201,
209 (2009) (allowing special masters to rely on accumulated experience in
determining fee awards).
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although
petitioner’s claim was ultimately unsuccessful, the undersigned finds that good
faith and reasonable basis existed throughout the matter. Respondent also has not
challenged the reasonable basis of the claim. A final award of reasonable
attorneys’ fees and costs is therefore proper in this case. See Greenlaw v. United
States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of matters the parties
present.”).
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. This is a two-step
process. Avera v. Sec’y of Health & Hum. 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
3
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 Rates
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.
However, when the bulk of the work is done outside the District of Columbia and
the attorneys’ rates are substantially lower, the Davis County exception applies,
and petitioner’s counsel is paid according to the local rate. Id. at 1349 (citing
Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S.
Env’t Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). Here, all the attorneys’
work was done in San Mateo, California. The local rate San Mateo, California is
substantially similar to the forum rate. Therefore, the Davis County exception
does not apply.
Petitioner requests the following hourly rates for the work of his counsel,
Mr. Michael Firestone: $311.20 per hour for work performed in 2020 and $365.00
per hour for work performed in 2021. For Mr. Martinez, petitioner requests the
following hourly rates: $380.00 per hour for work performed in 2016; $400.00 per
hour for work performed in 2017; and $440.00 per hour for work performed in
2019. The requested rates are consistent with what Mr. Firestone and Mr.
Martinez have previously been awarded for their Vaccine Program work. See, e.g.,
Morrow v. Sec’y of Health & Hum. Servs., No. 17-1964V, 2021 WL 6424072, at
*2 (Fed. Cl. Spec. Mstr. Dec. 9, 2021); Phillips v. Sec’y of Health & Hum. Servs.,
No. 16-906V, 2021 WL 2768362, at *2 (Fed. Cl. Spec. Mstr. May 26, 2021);
Mitchell v. Sec’y of Health & Hum. Servs., No. 16-749V, 2020 WL 5543736, at
*1 (Fed. Cl. Spec. Mstr. Aug. 14, 2020); Leonard v. Sec’y of Health & Hum.
Servs., No. 15-1135V, 2017 WL 7310151, at *1 (Fed. Cl. Spec. Mstr. Aug. 7,
2017). Petitioner also requests reasonable hourly rates for work performed by
paralegals. Accordingly, the requested hourly 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, 3 F.3d at 1521. The Secretary did not directly challenge any of the
requested hours as unreasonable.
4
For both Mr. Firestone’s work and Mr. Martinez’s work, the undersigned
has reviewed the submitted billing records and finds most of the time billed to be
reasonable. Mr. Firestone’s timesheet provides sufficiently detailed descriptions of
the work performed. See Pet’r’s Mot. at 14-19. One issue is a small amount of
clerical work billed by the firm’s paralegal, including time billed for receiving and
organizing case files. See id. at 16 (8/19/2020, 8/20/2020, and 8/25/2020 entries).
Billing for clerical or administrative work is not permitted in the Vaccine Program.
See Rochester v. United States, 18 Cl. Ct. 379 (1989). A total of six hours was
spent on this task. This results in a reduction of $900.00. Therefore, for Mr.
Firestone’s work, petitioner is awarded final attorneys’ fees of $6,224.42.
With respect to Mr. Martinez’s work, Mr. Martinez billed a small amount of
time for reviewing orders and filing documents in 2017. This issue was relatively
minor and results in a reduction of $950.00. Accordingly, for Mr. Martinez’s
work, petitioner is awarded final attorneys’ fees of $24,866.00.
C. Costs
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira, 27 Fed. Cl. at 34. Petitioner requests a total of $24.77 in
attorneys’ costs for work associated with Mr. Firestone’s work. This amount is
comprised of acquiring medical records and postage. Petitioner has provided
adequate documentation supporting all of the requested costs, and all appear
reasonable in the undersigned’s experience. Petitioner did not request costs
associated with Mr. Martinez’s work. Petitioner is therefore awarded $24.77 in
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 $31,115.19, consisting
of:
• $6,249.19 to be awarded to Mr. Firestone (representing $6,224.42 in
attorneys’ fees and $24.77 in attorneys’ costs); and
• $24,866.00 to be awarded to Mr. Martinez.
This award shall be a lump sum in the form of a check jointly payable to
petitioner and petitioner’s counsel, Mr. Michael Firestone. Mr. Firestone will
5
disperse funds awarded to Mr. Martinez appropriately.2 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. 3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Mr. Firestone has agreed to disperse funds awarded to Mr. Martinez to his
widow, Diana Dorame. Pet’r’s Status Rep., filed June 6, 2022; see also Morrow,
2021 WL 6424072.
3
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