Loken v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 7, 2020
* * * * * * * * * * * * * * UNPUBLISHED
TIMOTHY J. LOKEN as Natural*
Guardian and Legal Representative
*
of G.L., a minor, *
*
Petitioner, * No. 18-876V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Nancy R. Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 20, 2018, Timothy J. Loken (“Petitioner”) filed a petition for compensation on
behalf of his minor daughter, G.L., pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). Petitioner alleged that the Tdap vaccine G.L.
received on June 10, 2016, caused her to suffer from idiopathic thrombocytopenia purpura. See
Petition, ECF No. 1. On March 13, 2020, the parties filed a stipulation, which the undersigned
adopted as her decision awarding compensation on March 16. 2020. ECF No. 33.
On August 31, 2020, Petitioner filed an application for final attorneys’ fees and costs. ECF
No. 38 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
$22,552.25, representing $22,131.75 in attorneys’ fees and $420.50 in attorneys’ costs. Fees App.
at 2.3 Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs related
to this litigation. Fees App. Ex. 3. Respondent responded to the motion on September 4, 2020,
stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Resp’t’s Resp. at 2, ECF No. 39. Petitioner filed a reply on September
4, 2020, concurring with Respondent. ECF No. 40.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, although the matter was eventually dismissed, the
undersigned finds that the petition was filed in good faith and there was a reasonable basis for the
matter to proceed for as long as it did. Accordingly, Petitioner is entitled to a final award of
reasonable attorneys’ fees and costs.
It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.a. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the work of his attorney, Ms. Nancy
Meyers: $350.00 per hour for work performed in 2017, $375.00 per hour for work performed in
2018, $390.00 per hour for work performed in 2019, and $400.00 per hour for work performed in
2020. These rates are consistent with what Ms. Meyers has previously been awarded for her
Vaccine Program work, and they are reasonable for the work performed in the instant case as well.
3
Petitioner’s motion originally sought total fees and costs of $22,333.25 (representing $21,914.35 in fees and
$418.90 in costs). On November 13, 2020, Petitioner filed a supplemental motion amending the requested amounts
to those reflected in this decision.
2
See Gorczyca v. Sec’y of Health & Human Servs., No. 18-1284V, slip op. at 3-5 (Fed. Cl. Spec.
Mstr. Nov. 6, 2020). The undersigned will therefore award them as requested.
b. Reasonable Hours Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and, upon review, the
undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $22,131.75.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $420.50 in attorneys’ costs. Fees App. at 22. This amount is comprised of photocopies,
postage, and the Court’s filing fee. Fees App. at 13. Petitioner has provided adequate
documentation supporting these costs and they are reasonable in the undersigned’s experience.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. The undersigned finds that it is reasonable to compensate Petitioner and his
counsel as follows:
Attorneys’ Fees Requested $22,131.75
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $22,131.75
Attorneys’ Costs Requested $420.50
(Reduction to Costs) -
Total Attorneys’ Costs Awarded $420.50
Total Amount Awarded $22,552.25
Accordingly, the undersigned awards a lump sum in the amount of $22,552.25,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner and Petitioner’s counsel of record, Ms. Nancy Meyers.
3
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
4