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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1578V
(not to be published)
RAGHU DUGGIRALA,
Chief Special Master Corcoran
Petitioner,
v. Filed: July 8, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs; Hourly
Rates; Paralegal Tasks at Attorney
Respondent. Rates; Non-Compensable Tasks
Reginald C. Allen, Law Office of Reginald Allen, Philadelphia, PA, for Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 10, 2018, Raghu Duggirala 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 he suffered a shoulder injury related to vaccine
administration. 3 (Petition at 1). On September 17, 2021, a decision was issued awarding
compensation to Petitioner based on the Respondent’s proffer.(ECF No. 50).
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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).
3
In the petition, Mr. Duggirala alleged that he received an influenza vaccine on October 24, 2015. Petitioner
at 1. However, the medical records establish that Petitioner’s vaccination actually occurred on October 4,
Petitioner has now filed a motion for attorney’s fees and costs, dated April 14, 2022
(ECF No. 54), requesting an award in the amount of $32,979.51 – solely reflective of fees.
In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner
incurred out-of-pocket expenses in the amount of $530.71. (ECF No. 58). Respondent
reacted to the motion on April 19, 2022, indicating 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. 56). On April 25, 2022,
Petitioner filed a reply stating that “Counsel has no further argument beyond what is stated
in his application”. (ECF No. 57).
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
2015, more than three years prior to the claim’s initiation. Ex 10 at 4-5. I addressed this issue in a Decision
Denying Respondent’s Motion to Dismiss. ECF 39.
2
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
ATTORNEY FEES
A. Hourly Rates
Petitioner requests that I endorse the following hourly rates for attorney Reginald
Allen: $439 per hour for time billed in 2018; $448 per hour for time billed in 2019; $467
per hour for time billed in 2020; and $491 per hour for time billed in 2021. (ECF No. 54 at
4). I find adjustments are needed to the rates requested.
Mr. Allen has been a practicing attorney since 1995, placing him in the range of
attorneys with 20 - 30 years of experience. (Id at 3). The requested rates are all within the
Vaccine Program’s published range for attorneys at his level of overall experience, albeit
on the highest end of the range. 4 However, Mr. Allen does not have demonstrated
Vaccine Act experience, with this matter being his first Program case. It is therefore
improper for Mr. Allen to receive rates established for comparably experienced counsel
who also have lengthy experience in the Program. See McCulloch v. Health and Human
Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)
(stating the following factors are paramount in deciding a reasonable forum hourly rate:
experience in the Vaccine Program, overall legal experience, the quality of work
performed, and the reputation in the legal community and community at large).
Accordingly, I find it reasonable to reduce the requested rates to the following:
$391 per hour for time billed in 2018; $406 per hour for time billed in 2019; $431 per hour
for time billed in 2020; and $460 per hour for time billed in 2021. This reduces the amount
to be awarded in fees by $2,892.50. 5 Mr. Allen will be entitled to rate increases in the
future as he demonstrates more experience in Vaccine Program cases.
4
These rates are derived from the undersigned’s application of the OSM Attorneys’ Forum Hourly Rate
Schedules and are available on the U.S. Court of Federal Claims website at
www.cofc.uscourts.gov/node/2914.
5
This amount is calculated as follows: ($439 - $391 = $48 x 22.30 hrs = $1,070.40) + ($448 - $406 = $42
x 7.5 hrs = $315) + ($467 - $431 = $36 x 37.3 hrs = $1,342.80) + ($491 - $460 = $31 x 5.3 hrs = $1,643) =
$2,892.50.
3
B. Paralegal Tasks at Attorney Rates
Mr. Allen’s rate must also be reduced where applied to work billed for paralegal
tasks. Attorneys may be compensated for paralegal-level work, but only at a rate that is
comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec’y of Health &
Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29,
2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health
& Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016);
Riggins. v. Sec’y of Health & Human Servs., 99-382V, 2009 WL 3319818, at *20-21 (Fed.
Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535,
2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008).
Mr. Allen billed over six hours on tasks that are more properly characterized as
paralegal tasks, including requesting medical records, and filing documents. A few non-
exhaustive examples of these entries include:
• July 20, 2018 (0.30 hrs) “Prepared and Sent Client Medical Release”;
• September 18, 2018 (0.30 hrs) “Made Online Request for NovaCare
Medical Records”;
• October 10, 2018 (0.30 hrs) “Mailed Petitioner Overnight from USPS”;
• October 21, 2019 (1.70 hrs) “Preparation of Records for Filing and Filing”;
and
• November 22, 2019 (0.30 hrs) “Prepared Letter to Walgreens to Obtain
VAR.”
(ECF No. 54 at 12, 13, 17 and 18).
I shall reduce Mr. Allen’s rate for these tasks to the following: $153 per hour for
2018; $156 per hour for 2019 and $163 per hour for time billed in 202. These rates are
comparable to what a paralegal would receive. This further reduces the awardable
attorney fees by $1,283.80. 6
C. Non-Compensable Attorney Work
Mr. Allen billed a total of 1.10 hours for time spent on tasks which are not
reimbursable. In particular, Petitioner requests fees associated with Mr. Allen’s bar
6
This amount consists of ($391 - $153 = $238 x 2.1 hrs = $499.80) + ($406 - $156 = $250 x 2.6 hrs = $650)
+ ($431 - $163 = $268 x 0.50 hrs = $134) = $1,283.60.
4
admission to the Court of Federal Claims. However, “it is inappropriate for counsel to bill
time for educating themselves about basic aspects of the Vaccine Program.” Matthews
v. Sec’y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl.
Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his client to
learn about an area of law in which he is unfamiliar. If an attorney may not bill his client
for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of
Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr.
July 13, 2007).
The Program does not pay fees associated with the Court’s bar admission process.
I will therefore deny reimbursement for all such fees, reducing the amount to be awarded
for attorney’s fees by $237.60. 7
PETITIONER’S COSTS
Petitioner requests $530.71 in overall costs he directly incurred. (ECF No. 58 at
2). This amount is comprised of obtaining medical records and the Court’s filing fee. I
have reviewed all of the requested costs and find them to be reasonable and shall award
them in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, Petitioner is awarded the total amount of $29,096.32 8 as follows:
• A lump sum of $28,565.61, representing reimbursement for attorneys’
fees, in the form of a check payable jointly to Petitioner and
Petitioner’s counsel, Reginald Allen; and
• A lump sum of $530.71, representing reimbursement for Petitioner’s
costs, in the form of a check payable to Petitioner.
7
8
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924
F.2d 1029 (Fed. Cir.1991).
5
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. 9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9
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