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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
IBIRONKE AKINTAJU, *
* No. 17-1574V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 8, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School,
Washington, DC, for Petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is Ibironke Akintaju’s (“petitioner”) motion for
final attorneys’ fees and costs. She is awarded $50,849.82.
* * *
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 October 20, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccine she received on October 23, 2014,
which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her an
allergic reaction and shoulder pain. In order to determine onset, the undersigned
held a fact hearing on November 18, 2020. The undersigned issued his findings of
fact on February 9, 2021. In response, petitioner filed a motion to dismiss her
petition on March 5, 2021. The undersigned issued his decision dismissing the
petition for insufficient proof on June 22, 2021. 2021 WL 2818361.
On October 21, 2021, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $56,499.80 and
attorneys’ costs of $0.00 for a total request of $56,499.80. Fees App. at 1. Pursuant
to General Order No. 9, petitioner has indicated that she has not personally
incurred any costs related to the prosecution of her petition. Id. at 2. On October
25, 2021, respondent filed a response to petitioners’ 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.
* * *
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 has also
indicated that he is satisfied that good faith and reasonable basis have been
satisfied. Respondent’s position greatly contributes to the finding of reasonable
basis. 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.”) A final award of reasonable attorneys’ fees
and costs is therefore proper in this case and the remaining question is whether the
requested fees and costs are 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
2
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)
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)).
Petitioner requests the following rates of compensation for the work of her
counsel: for Ms. Renee Gentry, $424.00 per hour for work performed in 2017,
$435.00 per hour for work performed in 2018, $445.00 per hour for work
performed in 2019, $464.00 per hour for work performed in 2020, and $489.00 per
hour for work performed in 2021; and for Mr. Clifford Shoemaker, $440.00 per
hour for work performed in 2017, $450.00 per hour for work performed in 2018,
and $460.00 per hour for work performed in 2019. These rates are consistent with
what counsel has previously been awarded for their Vaccine Program work and the
undersigned finds them to be reasonable herein for work performed in the instant
case. See, e.g., Chilazi v. Sec'y of Health & Human Servs., No. 17-221V, 2021 WL
3931913 (Fed. Cl. Spec. Mstr. July 1, 2021); Temes v. Sec'y of Health & Human
Servs., No. 16-1465V, 2021 WL 2375787 (Fed. Cl. Spec. Mstr. Apr. 15, 2021);
Hoefling v. Sec'y of Health & Human Servs., No. 18-1935V, 2020 WL 6109440(Fed. Cl. Spec. Mstr. Sep. 14, 2020).
3
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.
The undersigned has reviewed the submitted billing entries and finds that a
reduction to the time billed must be made for several reasons. First, many of Mr.
Shoemaker’s billing entries for communication (such as phone calls and e-mails to
the client and other parties) is vague because it does not mention the topic of the
communication. As the Federal Circuit has previously ruled, disclosure of the
general subject matter of billing statements does not violate attorney-client
privilege and billing entries for communication should contain some indication as
to the nature and purpose of the communication. See Avgoustis v. Shinseki, 639
F.3d 1340, 1344-45 (Fed. Cir. 2011). Mr. Shoemaker has previously been
cautioned that his billing entries should contain greater detail. Oliver v. Sec'y of
Health & Human Servs., No. 10-394V, 2019 WL 2246727 (Fed. Cl. Spec. Mstr.
Apr. 16, 2019); Price v. Sec'y of Health & Human Servs., No. 11-442V, 2019 WL
1796100 (Fed. Cl. Spec. Mstr. Mar. 22, 2019); Prokopeas v. Sec'y of Health &
Human Servs., No. 04-1717V, 2017 WL 6763067 (Fed. Cl. Spec. Mstr. Dec. 5,
2017).
Second, Ms. Gentry billed time for the drafting of pro forma documents
accompanying the filing of various exhibits. When an attorney does the work of a
paralegal or administrative assistant, he or she should be paid a rate commensurate
with the nature of the work. See Valdes v. Sec'y of Health & Human Servs., 89
Fed. Cl. 415, 425 (2009). In the undersigned’s experience, at a larger firm the
drafting of such documents would typically be handled by paralegals because they
do not require any specialized legal experience to create. To Ms. Gentry’s credit,
she delineated other paralegal tasks from her normal time billed and charged an
appropriate paralegal amount for those entries.
Finally, the undersigned notes that an excessive amount of hours have been
billed as part of the GWU Vaccine Clinic, both in its general administration and in
specific billing entries. Specific concerning entries include four hours billed on
“Working on America brief” without any indication what that brief was about (and
no brief being filed by petitioner around or after the date the work was performed)
and vague descriptions of communication with the client and preparation for the
fact hearing. Given that multiple student attorneys billed time to hearing
4
preparation, it would have been helpful if the billing entries described with some
detail what exactly they were doing to prepare for the hearing in order to ensure
there wasn’t a duplication of efforts. The hearing itself was straightforward and in
the undersigned’s experience, typically would have been handled by one attorney,
and upon review, the total hours billed for hearing preparation are indeed high.
A more general issue is the amount of time billed by Ms. Gentry, Mr.
Shoemaker, and the student attorneys on class meetings. As other special masters
have noted, although the clinic provides a hands-on experience with supervision
from knowledgeable attorneys, “the attorneys should not bill this teaching function
to the Vaccine Program.” Grant v. Sec’y of Health & Human Servs., No. 17-
1816V, 2019 WL 6588294, at *9 (Fed. Cl. Spec. Mstr. Oct. 29, 2019). This issue
has previously been noted several times in other cases involving the GWU Vaccine
Clinic. See, e.g., Davis v. Sec’y of Health & Human Servs., No. 15-159V, 2017
WL 877277, at *6 (Fed. Cl. Spec. Mstr. Feb. 7, 2017); Boylston v. Sec’y of Health
& Human Servs., No. 11-117V, 2016 WL 3080574 (Fed. Cl. Spec. Mstr. May 10,
2016). The undersigned notes that billing for this teaching function extended
beyond the student attorneys who actually participated in the hearing - one student
attorney billed three hours to attend the hearing although she performed no other
casework. Fees App. at 27. It is extremely unlikely that any client would pay for an
attorney or paralegal with no prior involvement in the case to merely watch the
hearing. See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“Hours that are not
properly billed to one’s client are also not properly billed to one’s adversary
pursuant to statutory authority.”)
Overall, the undersigned finds that a ten percent reduction is appropriate in
order to achieve “rough justice.” Fox v. Vice, 563 U.S. 826, 838 (2011). However,
the undersigned notes that in future cases in which these same issues arise, the
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 attorneys’ fees in the amount of $50,849.82.
C. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, the undersigned awards a total of
$50,849.82 (representing $50,849.82 in attorneys’ fees and $0.00 in attorneys’
5
costs) as a lump sum in the form of a check jointly payable to petitioner and her
counsel, Ms. Renee Gentry.
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.
6