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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-502V
MARTHA DELGADO,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 25, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 11, 2021, Martha Delgado 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 resulting from an influenza vaccine she received on September 10, 2020.
Petition, ECF No. 1. On August 2, 2023, I issued a decision awarding compensation to
Petitioner based on the Respondent’s proffer. ECF No. 44.
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 $31,164.77 (representing $30,450.70 in attorney’s fees, and $714.07 in costs).
Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Aug. 17, 2023, ECF
No. 48. 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 August 31, 2023, 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.
Respondent’s Response to Motion at 2-3, ECF No. 49. 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 for
successful claimants. Section 15(e). Fees requests must 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 hourly rates for attorneys performing work in this matter as
follows:
2020 2021 2022 2023
Jonathan Svitak $280 $310 $350 $380
Patrick Anderson $315 $365 $415 X
The hourly rates requested for Mr. Svitak for his time billed in the 2020-23’
timeframe are reasonable and consistent with prior determinations, and shall therefore
be awarded herein. The rates requested for Mr. Patrick Anderson, however, require
adjustment.
Mr. Anderson was previously awarded the rate of $315 per hour for all time billed
in the 2020-22 timeframe, less than what is being requested herein. See Miller v. Sec’y
of Health & Human Servs., No. 21-0570V, Slip. Op. 41, (Fed. Cl. Spec. Mstr. Sept. 22,
2023). I find no reason to deviate from Mr. Anderson’s previously awarded rates.
Accordingly, I reduce Mr. Anderson’s rates be consistent with what he has been
previously awarded for the given timeframe. This reduces the amount of fees to be
awarded by $2,865.00. 3
CONCLUSION
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 $28,299.77 (representing $27,585.70 in
attorney’s fees and $714.07 in attorney’s costs) as a lump sum in the form of a
check jointly payable to Petitioner and Petitioner’s counsel, Jonathan J. Svitak. 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 ($415 - $315 = $100 x 11.70 hrs) + ($365 - $315 = $50 x 33.90 hrs) =
$2,865.00.
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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