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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1440V
(not to be published)
RICHARD DENNIS MISZEWSKI,
Chief Special Master Corcoran
Petitioner,
v. Filed: July 22, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Phillip S. Georges, Phillip S. Georges, PLLC, Nashville, TN, for Petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 22, 2020, Richard Miszewski 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 from Guillain-Barré syndrome as a
result of an influenza vaccine he received on January 22, 2019. (Petition at 1). On March
23, 2022, a decision was issued awarding compensation to Petitioner based on the
Respondent’s proffer. (ECF No. 26).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2
National 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 May 17, 2022,
(ECF No. 36) requesting a total award of $28,122.89 (representing $22,728.75 in attorney
fees and $5,394.14 in attorney costs). In accordance with General Order No. 9, Petitioner
filed a signed statement indicating that he incurred no out-of-pocket expenses. (ECF No.
36-6). Respondent reacted to the motion on May 18, 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.
37). Petitioner did not file a reply thereafter.
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
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
2
ATTORNEY FEES
A. Hourly Rates
1. Phillip S. Georges
Petitioner is requesting the following rates for his attorney Phillip S. Georges: $395
per hour for time billed in 2018; $405 per hour for time billed in 2019; $420 per hour for
time billed in 2020; $444 per hour for time billed in 2021; and $450 per hour for time billed
in 2022. (ECF No. 36-1 at 3). Mr. Georges has been a licensed attorney since 2005,
placing him in the range of attorneys with 11 - 19 years’ experience based on the OSM
Attorney Fees Rate Schedule. Although the requested rates are within the appropriate
experience ranges, Mr. Georges does not have demonstrated Vaccine Act experience,
with this matter being his first Program case in which his rates are to be determined. It is
therefore improper for Mr. Georges 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:
$330 per hour for time billed in 2018; $350 per hour for time billed in 2019; $365 per hour
for time billed in 2020; $385 per hour for time billed in 2021; and $400 per hour for time
billed in 2022. This reduces the amount to be awarded in fees by $1,355.00. 3
2. Adam Woodside
Attorney Adam Woodside has been licensed to practice law since 2018, placing
him in the range of attorneys with less than four years’ experience. (ECF No. 36-1 at 2).
However, Mr. Woodside is not admitted to practice in the Court of Federal Claims, and
therefore is ineligible to collect fees at the same rate as a Court’s bar member. See
Underwood v. Sec’y of Health & Human Servs., No. 00-357V, 2013 WL 3157525, (Fed.
Cl. Spec. Mstr. May 31, 2013).
3This amount is calculated as follows: ($395 - $330 = $65 x 6.9 hrs = $448.50) + ($440 - $350 = $90 x 4.65
hrs = $418.50) + ($420 - $365 = $55 x 3 hrs = $165) + ($444 - $385 = $59 x 2 hrs = $118) + ($450 - $400
= $50 x 4.1 hrs = $205) = $1,355.00.
3
As such, the time billed by Mr. Woodside must compensated at non-attorney rates.
I shall reduce Mr. Woodside’s requested rates from $200 per hour for time billed in 2018
to the rate of $153 per hour and $240 per hour for time billed in 2019 to $156 per hour.4
These represents rates more in line to that of a supporting paralegal in the Vaccine
Program. This results in a reduction of the attorney fees requested in amount of $443.15. 5
B. Administrative Time
Upon review of the billing records submitted, it appears that there are several
entries for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the attorney’s
fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health &
Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014).
“[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.”
Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). Seven hours was
billed on tasks considered administrative including, creating PDF’s, making documents
searchable, and creating files smaller.
Because the Program does not reimburse such administrative tasks, I will reduce
the amount of fees to be awarded by $1,050.00. 6
C. Other – Retainer Agreement
The materials filed in connection with the present fee request reveal that Petitioner
entered into an agreement with counsel setting rates for Mr. Georges between $250 -
$450 per hour, and for law clerks at $150 - $200. (ECF No. 36-2 at 1). This kind of
arrangement, however, while acceptable between lawyer and client outside of the
Program, is wholly impermissible within the Program, where fees and costs can only be
awarded by order of the special master presiding over the case. See Section 15(e)(3)
(“[n]o attorney may charge any fee for services in connection with a petition . . . which is
in addition to any amount awarded as compensation by the special master or court under
paragraph (1)”) (emphasis added).
4 Mr. Woodside billed 0.25 hrs in 2018 and 1 hour in 2019 at the rate of $250 per hour. These rates will be
reduced accordingly.
5This amount consists of ($200 - $153 = $47 x 4.2 hrs = $197.40) + ($240 - $156 = $84 x 1.5 hrs = $127.50)
+ ($250 - $153 = $97 x 0.25 hrs = $24.25) + ($250 - $156 = $94 x 1 hrs = $94) = $443.15.
6 This amount consists of: ($150 x 7 hrs = $1,050.00).
4
I raise this issue both to bring it to Petitioner’s and counsel’s attention, and also to
notify counsel that attempting to recover any fees or costs that have been requested
herein but not awarded by this Decision would constitute a violation of the Vaccine Act.
Enforcement of terms used for civil retainer agreements despite this admonition would
also raise legitimate questions about counsel’s ethical conduct that would have to be
raised with the Court of Federal Claims.
ATTORNEY COSTS
Petitioner requests $5,394.14 in overall costs. (ECF No. 36-4 at 1). This amount is
comprised of obtaining medical records, expert costs 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. However, I would like to caution counsel that for future cases, authorization is
needed by the Court before retaining an expert.
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 $25,274.74 (representing $19,880.60 in fees and $5,394.14 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
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. 7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
5