Condara v. .Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
JANICE CONDARA, *
* No. 17-977V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: December 20, 2021
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Brian L. Cinelli, Marcus & Cinelli, LLP, Williamsville, NY, for Petitioner;
Dhairya D. Jani, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On March 18, 2021, petitioner Janice Condara moved for final attorneys’
fees and costs. She is awarded $67,936.38.
* * *
On July 20, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccination she received on November 22,
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
2014, caused her to suffer a shoulder injury related to vaccine administration.
Petition at 1. A fact hearing was held on October 18, 2019, and the undersigned
issued his findings of fact on October 22, 2019. Thereafter, the parties engaged in
settlement negotiations and on September 23, 2020, the parties filed a stipulation,
which the undersigned adopted as his decision awarding compensation on the same
day. 2020 WL 6293259 (Fed. Cl. Spec. Mstr. Sept. 23, 2020).
On March 18, 2021, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $65,051.00 and
attorneys’ costs of $3,435.38 for a total request of $68,486.38. Fees App. at 5.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of her case. Fees App. Ex. 5. On
March 18, 2021, respondent filed a response to petitioner’s motion. Respondent
argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role
for respondent in the resolution of a request by a petitioner for an award of
attorneys’ fees and costs.” Response at 1. Respondent adds, however that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Id at 2. Additionally, he recommends “that the Court exercise
its discretion” when determining a reasonable award for attorneys’ fees and costs.
Id. at 3. Petitioner did not file a reply thereafter.
* * *
In this case, because petitioner was awarded compensation pursuant to a
stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs.
42 U.S.C. § 300aa-15(e)(1). Thus, the question at bar is whether the requested
amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … 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)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
2
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
during this period was done outside of the District of Columbia.
Petitioner requests the following hourly rates for the work of her counsel,
Mr. Brian Cinelli: $275.00 per hour for work performed in 2015 and 2016, $300.00
per hour for work performed in 201-2021. These rates are consistent with what
counsel has previously been awarded for his Vaccine Program work and they shall
be awarded herein. See Albers v. Sec’y of Health & Human Servs., No. 16-1715V,
2020 WL 8509729, at *2 (Fed. Cl. Spec. Mstr. Dec. 2, 2020); Stine v. Sec’y of
Health & Human Servs., No. 17-1389V, 2020 WL 6746986 (Fed. Cl. Spec. Mstr.
Oct. 23, 2020).
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
Upon review of the submitted billing records, the undersigned finds most
time billed to be reasonable. The undersigned notes that counsel has done a good
job with the level of description contained in the billing entries, which has allowed
the undersigned to assess their reasonableness. The only issue is that paralegals
have billed some time for administrative/clerical tasks, such as handing invoices
for costs and for filing documents on behalf of Mr. Cinelli. Upon review, a
reasonable reduction for these issues is $550.00, representing five hours of
paralegal time billed. Petitioner is therefore awarded final attorneys’ fees of
$64,501.00.
3
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$3,435.38 in costs. This amount is comprised of Acquiring medical records, the
Court’s filing fee, postage, photocopies, travel costs associated with attending the
fact hearing in Houston, Texas, and the cost of the transcript from that hearing.
Fees App. Ex. 3 at 29. Petitioner has provided adequate documentation to support
the requested costs, and all appear reasonable in the undersigned’s experience.
Petitioner is therefore awarded the full amount of costs requested.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $67,936.38 (representing
$64,501.00 in attorneys’ fees and $3,435.38 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and her attorney, Mr. Brian
Cinelli.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
4