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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1163V
(not to be published)
JOEL WILLIAMS,
Chief Special Master Corcoran
Petitioner,
v. Filed: June 30, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Howard Dale Mishkind, Mishkind Law Firm Col, L.P.A., Beachwood, OH, for Petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 12, 2019, Joel Williams 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 he suffered a shoulder injury related to vaccine
administration caused by an influenza vaccine administered on September 27, 2016.
(Petition at 1). On March 31, 2021, a decision was issued awarding compensation to
Petitioner based on the parties’ stipulation. (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Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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.
2National 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 May 4, 2021
(ECF No. 33), requesting a total award of $20,878.05 (representing $20,395.00 in fees
and $483.05 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that he incurred no out-of-pocket expenses. (ECF No. 33-2).
Respondent reacted to the motion on May 10, 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. 35).
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 Howard Mishkind at the rate of $400
per hour for time billed between 2017 – 2019, and $450 per hour for time billed between
2020 - 2021. (ECF No. 33-1 at 6). However. Mr. Mishkind has previously been awarded
the rate of $394 per hour for time billed in 2017. See Spearman v. Sec’y of Health &
Human Servs., No. 16-1119V, 2018 WL 399127 (Fed. Cl. Spec. Mstr. Apr. 10, 2018); 17-
0689VWalker v. Sec’y of Health & Human Servs., No. 17-0689, 2018 WL 526263 (Fed.
Cl. Spec. Mstr. Aug. 21, 2018). I agree with the reasoning of the previous special master
in adopting this rate, and therefore similarly reduce Mr. Mishkind’s rate for work performed
in 2017. The rates requested for 2018 and 2019, however, are consistent with what Mr.
Mishkind has been awarded for his work in the Vaccine Program in prior cases, and I
shall therefore apply them herein.
The proposed rate for Mr. Mishkind’s 2020 work falls within the experience range
provided in OSM’s recently-updated rate chart for similarly-situated attorneys, but I find
the specifically-requested increase (from $400 to $450) to be excessive. 3 Rather, based
on my experience applying the factors relevant to determining proper hourly rates for
Program attorneys, 4 a rate of $425 per hour is more appropriate for Mr. Mishkind’s 2020
time. The requested rate of $450 for time billed in 2021 shall be awarded. Application of
the reduced rates results in a reduction of attorney fees in the amount of $261.60. 5
ATTORNEY COSTS
Petitioner requests $483.05 in overall costs. (ECF No. 33-1 at 6). This amount is
comprised of obtaining medical records, shipping fees and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable and shall therefore
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
3
The Attorneys’ Fee Schedule for 2021 is available at http://www.uscfc.uscourts.gov/node/2914.
4
See McCulloch v. Health and Human Services, No. 09–293V, 2015 WL 5634323 at *17 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015).
5
This amount consists of ($400 - $394 = $6 x 6.1 hrs = $36.60) + ($450 - $425 = $25 x 9 hrs = $225) =
$261.60.
3
award a total of $20,616.45 (representing $20,133.40 in fees and $483.05 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. 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6
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