Berrier v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1498V
Filed: March 26, 2021
* * * * * * * * * * * * * *
SHERI L. BERRIER, * UNPUBLISHED
*
Petitioner, *
*
v. * Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Zachary J. Hermsen, Whitfield & Eddy Law, Des Moines, IA, for petitioner.
Althea W. Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On September 28, 2018, Sheri Berrier (“petitioner”) filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner alleged that she developed a
shoulder injury related to vaccine administration after receiving an influenza vaccination on
September 30, 2016. See Petition, ECF No. 1. On June 16, 2020, the parties filed a stipulation,
which the undersigned adopted as her decision awarding compensation on the same day. ECF
No. 30.
On December 9, 2020, petitioner filed an application for final attorneys’ fees and costs.
ECF No. 35 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
1
The undersigned intends to post this Decision on the United States Court of Federal Claims' website. 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 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. Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
$5,783.90 (representing $5,761.50 in attorneys’ fees and $22.40 in costs). Fees App. at 5.
Pursuant to General Order No. 9, petitioner has indicated she has not personally incurred any
costs in pursuit of this litigation. ECF No. 34. Respondent responded to the motion on December
10, 2020, stating “Respondent is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and requesting that the undersigned “exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Response at 2, ECF No. 36. Petitioner
did not file a reply thereafter.
This matter is now ripe for consideration.
I. Legal Framework
The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner
was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable
attorneys’ fees and costs.
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of
Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys' fees” is calculated 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)). That product is then adjusted upward or downward
based on other specific findings. Id.Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl.
201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee
application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).
II. Discussion
A. Reasonable Hourly Rate
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's
attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees
to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum
2
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human
Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See
McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3
Petitioner requests the following hourly rates for the work of her counsel at Whitfield Eddy
Law: for Mr. Zachary Hermsen, $215.00 per hour for work performed in 2019 and $265.00 per
hour for work performed in 2020; for Mr. Thomas Reavely, $425.00 per hour for work performed
in 2019; and for Ms. Bryn Hazelwonder, $200.00 per hour for work performed in 2020. Fees App
Ex. 5 at 5. The 2019 rates are reasonable and consistent with what Mr. Hermsen and Mr. Reavely
have previously been awarded for their vaccine program work. The 2020 rates require additional
discussion.
The requested 2020 rate for Mr. Hermsen exceeds what he has previously been awarded.
See K.G. v. Sec’y of Health & Human Servs., No. 18-120V, 2020 WL 345990, at *4 (Fed. Cl. Spec.
Mstr. May 21, 2020) (noting that an hourly rate of $260.00 per hour was “a fairly abrupt upward
increase” from his 2019 rate and finding $255.00 per hour to be more reasonable based on Mr.
Hermsen’s credentials). Petitioner acknowledges this lower rate, but contends that an increase is
warranted “to reflect his increased experience, which now places him at over five years as a
practicing attorney – at the time of the decision in K.G. awarding him $255 per hour, he had only
practiced four years.” Fees App. at 4. However, the special master in K.G. noted that Mr.
Hermsen’s experience placed him within the experience range of 4-7 years on the OSM Fee
Schedules while also acknowledging that Mr. Hermsen had approximately 5 years of experience
in 2020. Further, as the special master noted, Mr. Hermsen’s “experience as a lawyer generally,
modified by his specific Vaccine Program experience, does not sufficiently justify a rate increase
not awarded to him for work in contemporaneous Vaccine cases.” K.G., 2020 WL 345990 at *4.
The undersigned agrees with the reasoned analysis in K.G. and finds that $255.00 per hour is a
reasonable hourly rate for Mr. Hermsen’s 2020 work in the instant case. Application of this rate
results in a reduction of $43.00.
Concerning the 2020 rate for Ms. Hazelwonder, this appears to be the first time her rate as
an attorney has been addressed by a special master.4 Ms. Hazelwonder has been licensed to practice
3
The 2015-2021 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly
rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health &
Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
4
In K.G., the petitioner sought an hourly rate for Ms. Hazelwonder (then known as Ms. Bryn Hedlund) of
$175.00 per hour. The special master ruled that because Ms. Hazelwonder was not admitted to practice in
the Court of Federal Claims, she was not eligible to receive attorney rates for her work. Since that time,
Ms. Hazelwonder has become a member of the bar of the Court of Federal Claims. Fees App. at 3.
3
law since 2019, giving her approximately one year of overall experience when she performed work
in this case and placing her in the lowest tier of experience of the OSM Fee Schedules. Petitioner
notes that Ms. Hazelwonder has performed attorney work in four additional cases besides the
instant case and assisted in other Vaccine Program cases in her capacity as a law clerk before
becoming a licensed attorney. However, the overall work performed by Ms. Hazelwonder in the
instant case and K.G. reflects that a minimal amount of the work is attributable to Ms. Hazelwonder
(the other cases cited are still pending and have not had a motion for interim fees filed and therefore
Ms. Hazelwonder’s involvement cannot be determined). Based upon all of the relevant factors, the
undersigned finds that an appropriate hourly rate for Ms. Hazelwonder’s work in 2020 is $175.00
per hour.5 Application of this rate results in a reduction of $32.50.
B. Hours Reasonably 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 ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). 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. Hours spent traveling are ordinarily compensated at one-
half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V,
2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is
inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine
Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2
(Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–
29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that the billing entries adequately describe the work done on
the case and the amount of time spent on that work. None of the entries appear objectionable, nor
has respondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final
award of attorneys’ fees in the amount of $5,686.00.
5
The undersigned notes that Mr. Hermsen has been compensated at $175.00 per hour for his work in 2017,
when he had approximately two years of overall experience. The impact of inflation is roughly offset by
the additional year of experience possessed by Mr. Hermsen in 2017 compared to Ms. Hazelwonder now.
4
C. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $22.40 in costs for PACER charges. The requested costs appear reasonable in the
undersigned’s experience. Accordingly, petitioner is entitled to final attorneys’ costs of $22.40.
III. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned hereby awards a lump sum of $5,708.40, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable
jointly to petitioner and Mr. Zachary Hermsen, Esq.
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.6
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
6
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
5