Sinko v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1592V
(not to be published)
LISA SINKO,
Chief Special Master Corcoran
Petitioner,
v. Filed: April 30, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Scott William Rooney, Nemes Rooney, P.C., Farmington, Hills, MI, for Petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 15, 2018, Lisa Sinko 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 she suffered shoulder injury related to vaccine
administration as the result of an influenza vaccine she received. (Petition at 1). On March
26, 2020, a decision was issued awarding compensation to Petitioner based on the
parties’ stipulation. (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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 February 24,
2020 (ECF No. 30), requesting a total award of $8,434.73 (representing $8,028.50 in fees
and $406.23 in costs). In accordance with General Order #9, counsel for Petitioner
represents that Petitioner has incurred out-of-pocket expenses in the amount of $96.67.
(Id. at 2). 3 Respondent reacted to the motion on February 25, 2020, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case and defers to the Court’s discretion to determine the amount to be awarded.
(ECF No. 31). Petitioner did not file a reply thereafter.
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. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. 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.
ATTORNEY FEES
3Counsel for Petitioner included copies of checks written by Petitioner for medical records filed in this
case. (ECF No. 30 at 12 – 13).
2
Petitioner requests the following rates of compensation for the work of his attorney
Mr. Scott Rooney at $350 an hour for time billed from 2018 – 2019. (ECF No. 30 at 2).
The rates requested are consistent with what has been previously awarded to Mr. Rooney
for his work in the Vaccine Program. Accordingly, no adjustment to these requested rates
is necessary. For time billed in 2020, Mr. Rooney is requesting the increased rate of $380
per hour. Mr. Rooney has not requested for an hourly rate increase since 2018. Due to
this fact and based on my experience (which takes into account the high quality of work
performed by present counsel), I find the requested increase for time billed in 2020 to be
reasonable and award it herein.
ATTORNEY COSTS
Petitioner requests $406.23 in costs incurred by Mr. Rooney, and $96.67 in
personally incurred costs. (ECF No. 30). This amount includes costs associated with
obtaining medical records, shipping costs, and the Court’s filing fee. I have reviewed the
requested costs and find them to be reasonable, and therefore award the requested
amount in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney fees and costs as
follows:
• A lump sum of $8,434.73, representing reimbursement for attorney’s
fees and costs, in the form of a check payable jointly to Petitioner
and Petitioner’s counsel and;
• A lump sum of $96.67, representing reimbursement for Petitioner’s
costs, in the form of a check payable to Petitioner.
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
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