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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0773V
(not to be published)
CANDICE E. HUTCHISON,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 18, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs; Hourly
Rates
Respondent.
Miriam A. Johnson, Berman & Simmons, PA, Lewiston, ME, for Petitioner.
James Vincent Lopez U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On June 25, 2020, Candice E. Hutchison 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 alleged that she suffered a shoulder injury related to vaccine
administration as a result of the influenza vaccine administered on November 24, 2018.
(Petition at 1). On November 16, 2021, a decision was issued awarding compensation to
Petitioner based on the Respondent’s proffer. (ECF No. 34).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 20, 2022
(ECF No. 38), requesting a total award of $15,335.09 (representing $14,861.40 in fees
and $473.69 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement that Petitioner incurred no out-of-pocket expenses. (ECF No. 38-6).
Respondent reacted to the motion on February 26, 2021, 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.
39). 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 reason 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
Petitioner requests compensation for attorney Miriam Johnson at the rate of $366
per hour for all time billed in the 2019-22 timeframe. (ECF No. 38 at 3). This rate is not
appropriate for all relevant years work was performed on this matter, however. I have
previously awarded Ms. Johnson the lesser rate of $325 per hour for her time billed in the
2019-20 period. See Infinger v. Sec’y of Health & Human Servs., No. 18-1407V, 2020 WL
5522950 (Fed. Cl. Spec. Mstr. Aug. 13, 2020). I find no reason to deviate from the
previously-awarded rate, and therefore reduce Ms. Johnson’s rate to $325 for time billed
in the 2019-20 period. This results in a reduction of $869.20. 3 For time billed thereafter,
the requested increased rate of $366 per hour is appropriate and will be awarded.
ATTORNEY COSTS
Petitioner requests $473.69 in overall costs. (ECF No. 38-4). This amount is
comprised of the Court’s filing fee and shipping costs. I have reviewed the requested
costs and find it 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, I hereby GRANT IN PART Petitioner’s Motion for attorney’s fees and
costs. I award a total of $14,465.89 (representing $13,992.00 in fees and $473.69 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. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 This amount consists of: $366 - $325 = $41 x 21.2 hrs = $869.20.
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3