Callaway v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-144V
(Not to be published)
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DONNA CALLAWAY, * Special Master Oler
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Petitioner, * Filed: February 12, 2018
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v. * Reasonable Attorneys’ Fees and Costs;
* Reasonable Hourly Rate.
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SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
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Respondent. *
*
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Edward M. Kraus, Chicago, IL, for Petitioner.
Althea Walker Davis, U. S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
On January 29, 2016, Donna Callaway (“Petitioner”) filed a petition seeking
compensation under the National Vaccine Injury Compensation Program (the “Vaccine
Program”),2 alleging that she suffered from transverse myelitis as a result of an influenza
vaccination administered to her on January 30, 2013. Petition (“Pet.”), ECF No. 1. On July 31,
2017, Special Master Hastings issued a Decision based on both parties’ stipulation that a
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decision in its present form will be
available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
decision be entered granting compensation. ECF No. 31. Judgment was entered on August 16,
2017. ECF No. 33.
On October 16, 2017, Petitioner filed a Motion for Attorneys’ Fees and Costs.
Petitioner’s Fees Application (“Fees App.”), ECF No. 37. Petitioner requests attorneys’ fees in
the amount of $35,324.00 and attorneys’ costs in the amount of $1,531.02. Id. Although a
General Order No. 9 statement was not formally filed, Petitioner’s counsel affirmatively asserted
that “Petitioner has not incurred any fees or costs related to the litigation of this case.” Id. at 1.
Respondent filed a response to Petitioner’s motion on October 18, 2017. ECF No. 38.
Respondent stated that he “is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case.” Id. at 2. Respondent provided no specific objection to the
amount requested or hours worked, but instead, “respectfully recommend[ed] that the special
master exercise [her] discretion and determine a reasonable award for attorneys’ fees and costs.”
Id. at 3.
I. Applicable Legal Standards
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys’ fees
is automatic. Id.; see Sebelius v. Cloer, 569 U.S. 369, 373 (2013). However, a petitioner need
not prevail on entitlement to receive a fee award as long as the petition was brought in “good
faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1).
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “[t]he
initial estimate of a reasonable attorney’s fee” is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347-48 (quoting
Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward
based on other specific findings. Id.A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 1348
(quoting Blum, 465 U.S. at 896 n.11). This rate is based on “the forum rate for the District of
Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.”
Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing
Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be
awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum
2
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec’y of Health &
Human Servs., 640 F.3d 1351, 1353 (Fed. Cir. 2011) (citing Davis Cty. Solid Waste Mgmt. &
Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases
in which forum rates apply, McCulloch provides the framework for determining the appropriate
hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). The Office of Special Masters has issued a fee schedule that updates the McCulloch rates
to account for inflation in subsequent years.3
Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. The application for fees and
costs must “sufficiently detail and explain the time billed so that a special master may determine
. . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be
reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No.
15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, counsel
should not include in their fee requests hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton ex rel. 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)). “Unreasonably duplicative
or excessive billing” includes “an attorney billing for a single task on multiple occasions,
multiple attorneys billing for a single task, attorneys billing excessively for intra office
communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing
entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). Ultimately,
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.” Saxton, 3 F.3d at 1522.
II. Discussion
a. Reasonable Hourly Rate
Petitioner requests the following hourly rates for Attorney Edward Kraus: $389.00 per
hour for work performed in 2016 and $398.00 per hour for work performed in 2017. See
generally Fees App. Petitioner also requests an hourly rate of $318.00 per hour for work
performed in 2017 by Attorney Amy Kraus. Id. Additionally, Petitioner requests the following
hourly rates for Attorney Tara O’Mahoney: $275.00 per hour for work performed in 2016 and
$281.00 per hour for work performed in 2017. Id. With the exception of the requested rate of
3
This fee schedule is posted on the Court’s website. See Office of Special Masters, Attorneys’ Forum Hourly Rate
Fee Schedule: 2015-2016, http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-
Schedule2015-2016.pdf.
3
$281.00 per hour for work performed by Ms. O’Mahoney in 2017, Petitioner’s counsel and
associates have previously been awarded the requested hourly forum rates.4 See Jackson v. Sec’y
of Health & Human Servs., No. 14-1217V, 2017 WL 2243092 (Fed. Cl. Spec. Mstr. Apr. 26,
2017); see also McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *3 (Fed. Cl. Sept. 1, 2015) (providing a framework for consideration of forum rates
for work performed in the Vaccine Program). The undersigned finds the previously awarded
hourly rates to be reasonable.
Petitioner proposes that Ms. O’Mahoney’s 2017 hourly rate be increased to $281.00,
which represents a $6.00 per hour increase from her prior 2016 hourly rate. See Fees App.
Although Petitioner did not provide information regarding Ms. O’Mahoney’s practice as an
attorney in support of her proposal to increase Ms. O’Mahoney’s hourly rate, it has previously
been discussed by a special master that Ms. O’Mahoney began practicing law in July 2012. See
Jackson v. v. Sec’y of Health & Human Servs., 2017 WL 2243092, at *3. As such, Ms.
O’Mahoney has been practicing law for just over 5.5 years. Under McCulloch, and the Office of
Special Masters’ Fee Schedule for 2017, Ms. O’Mahoney may reasonably receive hourly rates
from $230.00 – $307.00.5 Respondent has raised no objections concerning the amounts
requested, and the undersigned finds Ms. O’Mahoney’s 2017 rate increase to be reasonable.
Petitioner requests $110.00 per hour for paralegal work performed in 2016. Fees App.
Such rates are reasonable as set forth in McColloch and the Office of Special Masters’ current
fee schedule. The undersigned thus finds that $110.00 per hour is reasonable compensation for
paralegal work in 2016.
b. Time Expended
Time expended by Petitioner’s counsel and his staff is reasonable. Based on the
undersigned’s review of the billing entries, and the lack of objection from Respondent, the
undersigned will award the attorneys’ fees in full.
c. Reasonable Attorneys’ Costs
Petitioner requests a total of $1,531.02 in attorneys’ costs. See Fees App. The requested
costs consist of obtaining medical records, filing the claim, and shipping. Petitioner provided
4
To the undersigned’s knowledge, Ms. O’Mahoney was not previously awarded an hourly rate of $281.00 for 2017
by other special masters.
5
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
4
receipts and invoices for such costs. Thus, the undersigned finds Petitioner’s requested costs to
be reasonable.
III. Conclusion
Based on the foregoing, the undersigned awards a lump sum in the amount of
$36,855.02,6 representing reimbursement for attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner, Ms. Donna Callaway, and Petitioner’s counsel, Mr. Edward Kraus,
Esq. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court is directed to enter judgment in accordance with this Decision.7
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
6
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
7
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the
right to seek review.
5