Michel v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0617V
Filed: September 20, 2017
UNPUBLISHED
ABIGAIL MICHEL,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On May 25, 2016, petitioner 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 alleged that she suffered left shoulder injuries including cellulitis and an
abscess as a result of a tetanus-diphtheria-pertussis (“Tdap”) vaccination she received
on April 3, 2015. On June 30, 2017, the undersigned issued a decision awarding
compensation to petitioner based on the parties’ joint stipulation. (ECF No. 30.)
On August 9, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 34.) Petitioner requests attorneys’ fees in the amount of $17,173.00, and
attorneys’ costs in the amount of $768.85. (Id. at 1-2.) In accordance with General
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
Order #9, petitioner's counsel represents that petitioner incurred no out-of-pocket
expenses. Thus, the total amount requested is $17,941.85.
On August 23, 2017, respondent filed a response stating respondent has no
objection to petitioner’s motion. (ECF No. 35.) Respondent cautions, however, that his
lack of objection “should not be construed as admission, concession, or waiver as to the
hourly rates requested, the number of hours billed, or the other litigation related costs.”
Id.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates, except as follows.
Petitioner billed a total of 1.3 hours for attorney C. Clark Hodgson, II, at an hourly rate of
$225.00, for a total of $292.50. As has been previously stated, due in part to Mr.
Hodgson’s lack of experience in the Vaccine Program, the undersigned finds that the
appropriately hourly rate for Mr. Hodgson is $200. Thus, petitioner is awarded a total of
$260.00 for Mr. Hodgson’s time which results in a reduction of $32.50.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $17,909.35,3 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Muller Brazil, LLP.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
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 generally Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2