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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1146V
(not to be published)
NIKKI RUDD,
Chief Special Master Corcoran
Petitioner,
v. Filed: June 21, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Kathryn Lee Bruns, Faraci Lange, LLP, Rochester, NY, for Petitioner.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 7, 2019, Nikki Rudd 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 a shoulder injury related to vaccine
administration after receipt of the influenza vaccine on October 5, 2016. (Petition at 1).
On February 10, 2021, a decision was issued awarding compensation to Petitioner based
on the Respondent’s proffer. (ECF No. 29).
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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 ref erences 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 April 16, 2021
(ECF No. 35), requesting a total award of $13,470.00 (representing $13,057.00 in fees
and $413.00 in costs). In accordance with General Order No. 9, counsel for Petitioner
represents that she incurred no out-of-pocket expenses. (ECF No. 35-3). Respondent
reacted to the motion on April 16, 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. 36). Petitioner did not
file a reply.
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 I endorse the hourly rate of $275 for all time billed between
2018 - 2021 for attorney Kathryn Bruns, with Matthew Belanger receiving the hourly rate
of $375 for work performed in the same timeframe. Both rate requests require adjustment.
First, Ms. Bruns has previously been awarded the lesser rate of $250 per hour for
time billed for 2018 - 2019. See Nolan v. Sec’y of Health & Human Servs., No. 18-1544V,
2020 WL 1137202 (Fed. Cl. Spec. Mstr. Feb. 6, 2020). Therefore, I shall reduce Ms.
Bruns’ 2018 and 2019 rates to be consistent. For the years 2020 and 2021, I will award
$275 per hour. Application of these reduced rates results in a reduction of $285.61. 3
Second, Mr. Belanger has been previously awarded the rate of $350 per hour for
time billed in 2018 and 2019. See, e.g., Barrett v. Sec’y of Health & Human Servs., No.
18-41V, 2019 WL 7557797, at *2 (Fed. Cl. Spec. Mstr. Dec. 13, 2019); Simon v. Sec’y of
Health & Human Servs., No. 17-1140V, 2019 WL 3933659 (Fed. Cl. Spec. Mstr. July 31,
2019). I hereby reduce Mr. Belanger’s rate to the previously awarded rate of $350 per
hour. This results in a reduction of $70.00. 4
The tasks billed and total hours dedicated to the matter require no additional
adjustment, and shall be awarded as requested.
ATTORNEY COSTS
Petitioner requests $413.00 in costs. (ECF No. 35-1 at 5). This amount is
comprised of obtaining medical records, the Court’s filing fee and copy costs. I have
reviewed all of the requested costs and find them 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 Petitioner’s Motion for attorney’s fees and costs. I
award a total of $13,114.39 (representing $12,701.39 in fees and $413.00 in costs) as a
lump sum in the form of a check jointly payable to Petitioner’s counsel. In the absence of
3
This amount consists of $275 - $250 = $25 x 16.9 hrs = $285.61.
4
This amount consists of $375 - $350 = $25 x 2.80 hrs = $70.00.
3
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. 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
4