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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1858V
(not to be published)
KARA HINKLEY,
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.
Chad Ray Donnahoo, Brian Elston Law, Asheville, NC, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On December 9, 2019, Kara Hinkley 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 her September 10, 2018 influenza vaccination. (Petition at
1). On April 30, 2021, a decision was issued awarding compensation to Petitioner based
on the Respondent’s proffer. (ECF No. 33).
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Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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 May 10, 2021
(ECF No. 37), requesting a total award of $13,640.00 (representing $13,110.00 in fees
and $530.00 in costs). In accordance with General Order No. 9, Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 38).
Respondent reacted to the motion on May 24, 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
A. Hourly Rates
Petitioner requests the hourly rate of $300 per hour for all time billed between 2019
- 2021 for attorney Chad Donnahoo. (ECF No. 37-1 at 2). Additionally, Petitioner requests
the rate of $150 per hour for all time billed by Mr. Donnahoo’s paralegal. (Id). Mr.
Donnahoo has been a licensed attorney in North Carolina since 2007, placing him in the
range of attorneys with 11 – 19 years’ experience on the OSM Attorneys’ Forum Hourly
Rate Schedule. 3 (Id. at 1). In light of his overall experience and taking into account the
OSM guidelines applied to attorney rates, the requested rates are reasonable, and I
award them herein.
B. Non-Compensable Billing
Mr. Donnahoo billed a total of 1.20 hours for time spent on tasks which are not
reimbursable. In particular, Petitioner requests fees associated with Mr. Donnahoo’s bar
admission to the Court of Federal Claims. However, “it is inappropriate for counsel to bill
time for educating themselves about basic aspects of the Vaccine Program,” and this
prohibition includes the cost of bar admission. Matthews v. Sec’y of Health & Human
Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). “An
inexperienced attorney may not ethically bill his client to learn about an area of law in
which he is unfamiliar. If an attorney may not bill his client for this task, the attorney may
also not bill the Program for this task.” Carter v. Sec’y of Health & Human Servs., No. 04-
1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007).
Given the foregoing, I will deny reimbursement for all such fees, reducing the
amount to be awarded for attorney’s fees by $360.00. 4
ATTORNEY COSTS
Petitioner requests $530.00 in overall costs. (ECF No. 37-1 at 16). This amount is
comprised of obtaining medical records, postage, and the Court’s filing fee. I have
reviewed the requested costs and find the majority of them to be reasonable, with one
exception for the cost listed as “Fee for Certificate of Good Standing”. (Id). Just as an
3
The of the OSM Attorneys’ Forum Hourly Rate Schedules and are available on the U.S. Court of Federal
Claims website at www.cofc.uscourts.gov/node/2914.
4
This amount consists of $300 x 1.20 hrs = $360.00.
3
attorney is not allowed to bill for his time to obtain his bar membership, any costs
associated with obtain a bar membership are also non-compensable. I will therefore deny
reimbursement for these costs, reducing the amount to be awarded for attorney’s fees by
$5.00.
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 $13,275.00 (representing $12,750.00 in fees and $525.00 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. 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