Mason v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-487V
Filed: February 21, 2018
* * * * * * * * * * * * * * *
KAYLA MASON, on Behalf of E.F., * UNPUBLISHED
*
Petitioner, *
v. *
* Decision on Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Mark T. Sadaka, Esq., Mark T. Sadaka, LLC. Englewood, NJ, for petitioner.
Jennifer L. Reynaud, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Roth, Special Master:
On June 6, 2014, Kayla Mason (“petitioner”) filed a petition on behalf of her minor child,
E.F., pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleges that
E.F. suffered from Evans Syndrome, thrombocytopenia, Coombs’ positive hemolytic anemia,
pancytopenia, and neutropenia, as a result of receiving the Diphtheria-Tetanus- acellular-
Pertussis (“DTaP”), Haemophilus Influenza Type B (“Hib”), inactivated Polio Virus (“IPV”),
Pneumococcal Conjugate (“PCV”), and Hepatitis B (“Hep B”) vaccinations on May 14, 2012.
Petition, ECF No. 1. Respondent denied causation; nevertheless, the parties stipulated to a
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Because this unpublished decision contains a reasoned explanation for the action in this case, I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).
damages award, and the undersigned issued a decision awarding damages on August 4, 2017.
See ECF No. 61.
On January 31, 2018, petitioner filed a Motion for Attorneys’ Fees and Costs, requesting
attorneys’ fees in the amount of $29,372.48, and $16,588.82 in costs, for a total of $45,961.30.
Motion for Fees, ECF No. 66. In accordance with General Order #9, petitioner’s counsel
represents that petitioner did not incur any out-of-pocket expenses. ECF No. 67. On February
13, 2018, respondent filed a response to petitioner’s Motion for Fees that contained no specific
objection to the amount requested or hours worked, but instead asked that the undersigned
exercise her discretion in determining the proper amount to be awarded. ECF No. 68.
I. Applicable Legal Standards
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, [t]he
initial estimate of a reasonable attorney’s fee” 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.
2
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
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. 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). Moreover, 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).
Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who
perform non-attorney-level work are compensated at a rate 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). 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). Finally, some tasks are never compensable. For instance, “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). And clerical and secretarial tasks should not be billed at all,
regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Non-
compensable clerical and secretarial tasks include making travel arrangements, reviewing and
paying invoices, setting up meetings, organizing files, scheduling conference calls, and
reviewing files for consistency. J.W., 2017 WL 877278, at *3; Barry v. Sec’y of Health &
Human Servs., No. 12-039V, 2016 WL 6835542, at *4 (Fed. Cl. Spec. Mstr. Oct. 25, 2016).
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.
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.
3
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 Rate and Hours Expanded
Petitioner requests $29,372.48 in attorneys’ fees. ECF No. 66-1. The requested hourly
rates, see id. at 2, are consistent with the rates previously found to be reasonable in cases
involving petitioner’s counsel. See e.g., Rodriguez v. Sec’y of Health & Human Servs., No. 13-
253V, 2017 WL 4509275, at *1 (Fed. Cl. Spec. Mstr. Sept. 15, 2017); Ladue v. Sec’y of Health
& Human Servs., No. 12-553V, 2017 WL 2328169, at *5 (Fed. Cl. Spec. Mstr. May 25, 2017).
Moreover, the number of hours expended in 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 of $16,588.82 in attorneys’ costs. ECF No. 66-2. The
requested costs consist of securing medical records, shipping costs, expert fees, and mediation
costs. The undersigned finds petitioner’s requested costs to be reasonable.
III. Total Award Summary
Based on the foregoing, the undersigned GRANTS petitioner’s Motion for Attorneys’
Fees and Costs. Accordingly, the undersigned awards $45,961.30, 4 representing $29,372.48 in
attorneys’ fees and $16,588.82 in attorneys’ costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Mark T. Sadaka, Esq. The clerk shall enter judgment
accordingly. 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