Vargas De Echavarria v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-2111V
LUZ AURORA VARGAS DE
ECHAVARRIA Chief Special Master Corcoran
Petitioner,
v. Filed: November 13, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul Adrian Green, Law Office of Paul Green, Pasadena, CA, for Petitioner.
Bridget Corridon, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 29, 2021, Luz Aurora Vargas de Echavarria 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 Guillain Barré
syndrome resulting from adverse effects of an influenza vaccine received on October 23,
2020. Petition, ECF No. 1. On June 14, 2023, I issued a decision awarding compensation
to Petitioner based on the Respondent’s proffer. ECF No. 35.
1
Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (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
inf ormation, 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 f rom 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 (2018).
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $16,635.70 (representing $16,142.00 in fees and $493.70 in costs). Petitioner’s
Application for Fees and Costs filed Aug. 24, 2023, ECF No. 41. In accordance with
General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-
pocket expenses. Id. at 3.
Respondent reacted to the motion on Aug. 25, 2023, reporting 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. Respondent’s
Response to Motion at 2-3, ECF No. 42. 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 reasons 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
2
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
Petitioner requests compensation for attorney Paul Green at the following rates:
$430 per hour for time billed in 2021; $440 per hour for time billed in 2022; and $450 per
hour for time billed in 2023. ECF No. 41 at 2. Some of these rates require adjustment.
Attorney Green was previously awarded the rate of $420 per hour for time billed in
2021, less than what is being requested herein. See Silva v. Sec’y of Health & Hum.
Servs., No. 18-1887V, Slip Op. 61, (Fed. Cl. Spec. Mstr. Jan. 21, 2022). I agree with the
reasoning from this earlier decision and reduce Mr. Green’s rate to be consistent with
Silva. This results in a reduction of fees to be awarded of $155.00. 3 The requested hourly
rates for the 2022-23 timeframe, however, are reasonable and shall be awarded herein.
Lastly, Petitioner has provided supporting documentation for all claimed costs.
Motion at 33-42. Respondent offered no specific objection to the rates or amounts sought.
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for
attorney’s fees and costs. I award a total of $16,480.70 (representing $15,987.00 in fees
and $493.70 in costs) as a lump sum in the form of a check jointly payable to
Petitioner and Petitioner’s counsel, Paul A Green. In the absence of a timely-filed
motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall
enter judgment in accordance with this Decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
This amount is calculated as: ($430 - $420 = $10 x 15.50) = $155.00
4
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.
3