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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
TERRANCE FINEFROCK, *
* No. 20-042V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: July 20, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Andrew D. Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner;
Zoe Wade, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On September 24, 2021, petitioner Terrance Finefrock moved for final
attorneys’ fees and costs. He is awarded $24,427.13.
* * *
On January 14, 2020, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the tetanus-diphtheria-acellular pertussis vaccine he received
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 February 11, 2017, which is contained in the Vaccine Injury Table (the
“Table”), 42 C.F.R. §100.3(a), caused him to suffer brachial neuritis. On
September 21, 2021, the parties filed a stipulation, which the undersigned adopted
as his decision awarding compensation on the same day. 2021 WL 4953210.
On September 24, 2021, petitioner filed a motion for final attorneys’ fees
and costs (“Fees App.”). Petitioner requests attorneys’ fees of $24,066.50 and
attorneys’ costs of $1,508.13 for a total request of $25,574.63. Fees App. at 4.
Pursuant to General Order No. 9, petitioner warrants that he has not personally
incurred any costs related to the prosecution of his case. Id. at 2. On September 27,
2021, respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response 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 Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Because petitioner received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable
The Vaccine Act permits an award of reasonable attorney’s 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 & Human 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 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.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
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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.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
during this period was done outside of the District of Columbia.
Petitioner requests the following hourly rates for the work of his counsel:
for Mr. Andrew Downing, $385.00 per hour for all work performed from 2018-
2021; and for Ms. Courtney Van Cott, $205.00 per hour for work performed in
2019 and $275.00 per hour for work performed in 2020 and 2021. The undersigned
has previously found these rates to be reasonable for the work of Mr. Downing and
Ms. Van Cott, and they are reasonable for work in the instant case as well. Bourche
v. Sec’y of Health & Human Servs., No. 15-232V, 2020 WL 6582180 (Fed. Cl.
Spec. Mstr. Oct. 16, 2020).
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 v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
Upon review of the submitted billing records, the undersigned finds most
time billed to be reasonable. The timesheet entries are sufficiently detailed such
that the undersigned can assess their reasonableness. However, two issues
necessitate a reduction. First, paralegals duplicated work Ms. Van Cott already
performed by reviewing some of the court orders. Similarly, paralegals charged
for administrative tasks such as filing documents and reviewing and paying
invoices. These issues have previously been noted concerning Van Cott &
Talamante paralegals. Second Fees Decision, 2018 WL 7046894, at *3; Sheridan
v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed.
Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-
538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Upon
review, an appropriate reduction for these issues is $1,147.50. However, the
undersigned notes that in future cases in which these same issues arise, the
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reduction will increase to reflect both a reduction of inappropriately billed time
billed and a deterrent aspect to offset the increased use of judicial resources
necessary to address these repetitive issues. See, e.g., Burgos v. Sec’y of Health &
Human Servs., No.16-903V, 2022 WL 1055355, at *3 (Fed. Cl. Spec. Mstr. Mar.
15, 2022).
Petitioner is therefore awarded final attorneys’ fees of $22,919.00.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$1,508.13 in costs. This amount is comprised of acquiring medical records,
postage, the Court’s filing fee, and work from petitioner’s treating neurologist Dr.
W. Horace Noland in conferencing with petitioner’s counsel and preparing an
opinion letter which was submitted into the record. Petitioner has provided
adequate documentation supporting these costs and they shall be fully reimbursed.
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 $24,427.13 (representing
$22,919.00 in attorneys’ fees and $1,508.13 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and his attorney, Mr. Andrew
Downing.
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.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
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