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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0626V
(not to be published)
MELISSA R. WAGNER,
Chief Special Master Corcoran
Petitioner,
v. Filed: June 22, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Kimberly Wilson White, Wilson Law, P.A., Raleigh, NC, for Petitioner.
Traci Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On May 20, 2020, Melissa R. Wagner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration caused-in-fact by the influenza vaccine she received on December 3,
2018. (Petition at 1, ¶¶ 2, 24). On February 8, 2022, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 32).
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
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 means the Decision 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, I agree that the identified material fits within this definition, I will redact such material from
public access.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated March 28,
2022 (ECF No. 37), requesting a total award of $25,138.71 (representing $24,395.00 in
fees and $743.71 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that Petitioner she incurred no out-of-pocket expenses. (ECF
No. 37-6). Respondent reacted to the motion on March 28, 2022, stating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, but deferring resolution of the amount to be awarded to my discretion. (ECF
No. 38). On March 30, 2022, Petitioner filed a reply stating, “Petitioner does not intend to
file a substantive Reply to Respondent’s response other than what is contained herein”.
(ECF No. 39).
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate for the reasons listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). 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
& 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 & 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 engage 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).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
2
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
ATTORNEY FEES
Petitioner requests compensation for attorney Kimberly White at the following
rates: $430 per hour for time billed from 2019 – 2021 and $450 for time billed in 2022.
(ECF No. 37-3 at 1-12). Ms. White was previously awarded the rates of $375 per hour for
2018; $390 per hour for 2019; $405 per hour for 2020; and $425 per hour for 2021. See
Fields v. Sec’y of Health & Hum. Servs., No. 20-0679V, Slip Op. 43, (Fed. Cl. Spec. Mstr.
May 12, 2022). I agree with the reasoning from this earlier decision and reduce Ms.
White’s rates to be consistent with Fields. This results in a reduction of fees to be awarded
by $629.00. 3 For time billed in 2022, the requested rate of $450 per hour shall be
awarded.
ATTORNEY COSTS
Petitioner requests $743.71 in overall costs. (ECF No. 37-4). This amount is
comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have
reviewed all of the requested costs and find one reduction is warranted. Specifically,
Petitioner is requesting $242.76 in “monthly admin” costs consisting of monthly fax,
phone, and legal research costs. (Id). These costs are more appropriately considered
administrative overhead It is well established that attorneys cannot bill for administrative
tasks, and this extends to costs incurred by an attorney. Additionally, these entries are
so vague, that it cannot be deciphered if the work performed and its necessity to the
case. Therefore, the requested costs will be reduced by $242.76. 4
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT IN PART Petitioner’s Motion for attorney’s fees and
costs. I award a total of $24,266.95 (representing $23,766.00 in fees and $500.95 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
3
This amount consists of ($430 - $375 = $55 x 1.3 hrs = $71.50) + ($430 - $405 = $25 x 18.80 hrs = $470)
+ ($430 - $425 = $5 x 12.50 hrs = $62.50) + ($450 - $425 = $25 x 1 hr = $25) = $629.00.
4
This amount consists of 14 monthly charges of $8.34 and 14 monthly charges of $9.00.
3
counsel. 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. 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
4