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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 25, 2023
* * * * * * * * * * * * * * UNPUBLISHED
JAMES CLARK, * No. 18-813V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Caryn S. Fennell, Caryn S, Fennell, Woodstock, GA, for Petitioner.
Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 8, 2018, petitioner, James Clark, filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that his receipt of a Hepatitis B vaccination on
February 17, 2017, caused a left shoulder injury. (ECF No. 1.). On February 7, 2022, I filed my
decision finding petitioner is not entitled to compensation. (ECF No. 61).
On August 5, 2022, petitioner filed an application for attorneys’ fees and costs. (ECF No.
67) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $48,586.83,
representing $35,713.39 in attorneys’ fees, $12,608.83 in costs, and $264.61 in costs personally
incurred by petitioner.3 Fees App. Ex. 1 at 3. Pursuant to General Order No. 9, counsel for
1
I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling
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 information, 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 from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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. § 3501note (2012) (Federal Management and Promotion of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 37553
The fees motion notes a total requested amount of $48,851.44. Fees App. at 1. However, the invoices
reflect the total amount to be $48,586.83. Fees App. Ex. 3 at 14. The undersigned will interpret that
amount to be the correct one.
petitioner represents that petitioner personally incurred expenses in the amount of $264.61. Id.Respondent filed a response on August 19, 2022, indicating that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF
No. 68). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
2
a. Hourly Rates
Petitioner requests the rate of $320.00 per hour compensation for his attorney, Ms. Caryn
Fennell. Ms. Fennell has previously awarded the rate of $290.00 per hour for time billed in 2017.
See Fennell v. Sec’y of Health & Human Servs., 16-413V, 2018 WL 1835214 (Fed. Cl. Spec. Mstr.
Feb. 13, 2018). The undersigned shall reduce the time billed in 2017 to the previously awarded
rate of $290.00, reducing the request of fees by $12.00. The remainder of the requested hourly
rates are reasonable and shall be awarded herein.
b. Hours Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review, the overall number of hours billed appears to be reasonable, however a small
reduction is necessary for time billed on tasks considered administrative, including scanning,
printing and sorting documents. In the Vaccine Program, secretarial work “should be considered
as normal overhead office costs included within the attorney's fee rates.” Rochester v. U.S., 18 Cl.
Ct. 379, 387 (1989); Dingle v. Sec'y of Health & Human Servs., No. 08-579V, 2014 WL 630473,
at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). I will reduce the request for fees by $490.00, the amount
billed for time considered administrative. Petitioner is therefore awarded final attorneys’ fees of
$35,211.39.
c. Attorneys’ Costs
Petitioner requests a total of $12,608.83 in attorneys’ costs. This amount is comprised of
acquiring medical records, acquiring medical literature, postage, and expert work performed by
Dr. David Axelrod. At the time petitioner filed his motion for attorneys’ costs, petitioner's motion
included a list of the claimed expenses but contained no documentation supporting them.
Accordingly, the undersigned ordered petitioner to file adequate supporting documentation. Order
dated July 18, 2023, ECF No. 70. On July 20, 2023, Petitioner filed a Notice of Filing Proof of
Costs. I have reviewed the submitted documentation and find the requested attorneys’ costs to be
reasonable and shall fully reimburse them.
Additionally, petitioner personally incurred $264.61 in costs for acquisition of medical
records. Supporting documentation was submitted in support of this request and petitioner shall be
awarded these costs in full.
II. Conclusion
3
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs is
reasonable. I find it reasonable to compensate petitioner and his counsel as follows:
1) a lump sum in the amount of $47,820.22, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s
counsel, Ms. Caryn Fennell; and
2) a lump sum payment in the amount of $264.61, representing out of pocket costs
incurred personally by petitioner, in the form of a check payable to petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
4