Jackson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-955V
Filed: September 20, 2017
* * * * * * * * * * * * * * *
DONALD JACKSON, * UNPUBLISHED
*
Petitioner, *
v. *
* Decision on Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Jeffrey S. Pop, Esq., Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Ryan D. Pyles, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On August 5, 2016, Donald Jackson (“Mr. Jackson” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleged
that he developed Guillain-Barre Syndrome (“GBS”) as a result of receiving an influenza (“flu”)
vaccination on September 17, 2013. Petition, ECF No. 1. Respondent denied that the flu
vaccine caused petitioner’s alleged injuries. Stipulation at ¶ 6, filed June 8, 2017. Nevertheless,
the parties agreed to settle the case. See id. On June 9, 2017, the undersigned issued a Decision
awarding compensation to petitioner based on the parties’ stipulation. Decision, ECF No. 25.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the
E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and
move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that provision,
I will delete 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 “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
On August 29, 2017, petitioner filed a Motion for Attorneys’ Fees and Costs. Motion for
Fees, ECF No. 26. Petitioner requested attorneys’ fees in the amount of $16,428.00, and $941.29
in costs, for a total amount of $17,369.29. In accordance with General Order #9, petitioner’s
counsel stated that petitioner did not incur any personal costs in this case. Id.
On September 13, 2017, respondent filed a response to petitioner’s Motion for Fees that
contained no specific objection to the amount requested or hours worked, but instead
“respectfully recommend[ed] that the Special Master exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” ECF No. 27 at 3.
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).
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.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.” Id. at 1348
(quoting Blum, 465 U.S. at 896 n.11). 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 attorneys’ fees to be
awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum
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 (Fed. Cir. 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 issued a fee schedule that updates the McCulloch rates
to account for inflation in subsequent years.3
3
This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.
2
Once the applicable hourly rate is determined, it is applied to 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). Moreover,
the “application for fees and costs must sufficiently detail and explain the time billed so that a
special master may determine . . . whether the amount requested is reasonable,” and an award of
attorneys’ fees may be reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health
& Human Servs., No. 15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017).
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 v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 728-29 (2011) (affirming special master’s reduction of attorney and paralegal
hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Ultimately,
special masters have substantial discretion in awarding fees and costs, 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 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. See Broekelschen, 102 Fed. Cl. at 729.
II. Discussion
A. Reasonable Hourly Rates and Time Expended
Petitioner requests $16,428.00 in attorneys’ fees. Motion for Fees, ECF No. 26-2, Ex. 1.
The requested hourly forum rates, see id. at 2, are consistent with the rates previously found to be
reasonable in cases involving petitioner’s counsel. See, e.g., Rosa v. Sec’y of Health & Human
Servs., Case No. 14-886V, 2017 WL 3083143 (Fed. Cl. Spec. Mstr. June 14, 2017); Tabor v.
Sec’y of Health & Human Servs., No. 16-485V, 2017 WL 2544906 (Fed. Cl. Spec. Mstr. May
3
17, 2017). Moreover, the number of hours expended on this case by petitioner’s counsel appear
to be reasonable. Therefore, the undersigned awards the requested attorneys’ fees.
B. Reasonable Costs
Petitioner requests a total amount of $941.29 in attorneys’ costs. Motion for Fees, ECF
No. 26-3, Ex. 2. The requested costs consist of the filing fee, shipping cost, and medical record
fees. The undersigned finds petitioner’s requested costs to be reasonable.
III. Total Award Summary
Based on the reasonableness of petitioner’s request for attorneys’ fees and costs, the
undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs. Accordingly, the
undersigned awards a total amount of $17,369.29,4 representing reimbursement for attorneys’
fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel,
Jeffrey S. Pop, Esq. The clerk of the court is directed to enter judgment in accordance with this
Decision.5
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal
services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees
(including costs) that would be in addition to the amount awarded herein. See Beck v. Sec’y of Health &
Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
4