Mox v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0462V
KELLY MOX,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 6, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Steven Santayana, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 20, 2020, Kelly Mox 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 alleges that she suffered a shoulder injury related to vaccine
administration as a result of an influenza vaccine administered on January 10, 2018.
Petition, ECF No. 1. On January 25, 2023, I issued a decision awarding compensation to
Petitioner based on the Respondent’s proffer. ECF No. 48.
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 $47,720.42 (representing $41,853.30 in fees and $5,867.12 in costs). Petitioner’s
Application for Fees and Costs (“Motion”) filed Aug. 25, 2023, ECF No. 52. In accordance
with General Order No. 9, Petitioner represents that Petitioner incurred no out-of-pocket
expenses. Id. at 2.
Respondent reacted to the motion on Aug. 29, 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. 53. On Sept. 5, 2023, Petitioner filed a reply
requesting an award of fees and costs as indicated in the motion. ECF No. 54.
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
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practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
ATTORNEY FEES
Petitioner requests the following hourly rates for attorney’s performing work in this
matter. For attorney Leah Durant: $380 for time billed in 2019; $395 for time billed in 2020;
$420 for time billed in 2021; $441 for time billed in 2022; and $463 for time billed in 2023.
For attorney Richard Armada: $400 for time billed in 2021; $420 for time billed in 2022;
and $441 for time billed in 2023. And for attorney Kate Coleman: $425 for time billed in
2020.
The rates requested for Ms. Durant and Mr. Armada are reasonable, and
consistent with prior determinations and shall therefore be awarded herein. Ms. Coleman,
however, was previously awarded the rate of $400 per hour for time billed in 2020, less
than what is being requested herein. See Stoliker v. Sec’y of Health & Hum. Servs., No.
17-990V, 2021 WL 1605960 (Fed. Cl. Spec. Mstr. Mar 24, 2021). I find no reason to
deviate from the previously awarded rate. Accordingly, I reduce Ms. Coleman’s rate to be
consistent with her previously awarded rate. This results in a reduction of attorney’s fees
to be awarded of $140.00. 3
Lastly, Petitioner has provided supporting documentation for all claimed costs.
ECF No. 52-2. 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 $47,580.42 (representing $41,713.30 in fees
and $5,867.12 in attorney’s costs) as a lump sum in the form of a check jointly
payable to Petitioner and Petitioner’s counsel, Leah V. Durant. 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
3
This amount consists of ($425 - $400 = $25 x 5.60 hrs = $140.00).
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
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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