Jordan v. Secretary of Health and Human Services

Corrected
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-481V
(not to be published)
MICHAEL B. JORDAN,
Chief Special Master Corcoran
Petitioner,
v. Filed: April 5, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
David Alexander Tierney, Rawls Law Group, Richmond, VA, for Petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 1, 2019, Michael B. Jordan 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 he suffered Guillain-Barré syndrome as a result of
an influenza vaccine administered on August 14, 2017. (Petition at 1). On November 24,
2020, a decision was issued awarding compensation to Petitioner based on the
Respondent’s proffer. (ECF No. 32).
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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. § 3501 note (2012) (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 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.
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 (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated March 3,
2021 (ECF No. 36), requesting a total award of $32,336.42 (representing $28,763.60 in
fees and $3,572.82 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that he incurred no out-of-pocket expenses. (ECF No. 36-3).
Respondent reacted to the motion on March 17, 2021, indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case,
but defers resolution of the amount to be awarded to my discretion. (ECF No. 17).
Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
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
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
2
ATTORNEY FEES
Petitioner requests compensation for attorney David Tierney at the following rates:
$200 per hour for time billed in 2018; $215 per hour for time billed in 2019; $231 per hour
for time billed in 2020; and $278 per hour for time billed in 2021. (ECF No. 36 at 3). The
rates for 2018 - 2020 have been previously reviewed in other cases and deemed
appropriate and shall be awarded in this matter as well. For 2021, the requested
increased rate of $278 per hour is also reasonable. The increase brings Mr. Tierney to
his appropriate range on the OSM Attorneys’ Forum Hourly Rate Schedules. 3
ATTORNEY COSTS
Petitioner requests $3,572.82 in overall costs. (ECF No. 36 at 2). This amount is
comprised of obtaining medical records, pacer fees and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable and shall award it in
full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $32,336.42 (representing $28,763.60 in fees and $3,572.82 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Mr. Tierney’s rate increase f or f rom 2020 to 2021 represents an atypically-large dollar increase for a single
year. This was necessary to bring Mr. Tierney’s rate into the appropriate range f or attorneys with his
experience. In the f uture, Mr. Tierney should not expect his hourly rate to be increased in the same manner.
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