McIntosh v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
ETTA B. McINTOSH, *
*
* No. 16-29V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: August 28, 2018
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees & costs, remand,
* legal research costs
Respondent. *
*********************
Jennifer Anne Gore Maglio, Maglio Christopher and Toale, PA, Sarasota, FL, for
Petitioner;
Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.
PUBLISHED DECISION ON REMAND AWARDING
ATTORNEYS’ FEES AND COSTS1
Ms. McIntosh has filed two motions for attorneys’ fees and costs, totaling
$65,510.13. She is awarded $63,022.29.
Procedural History
Ms. McIntosh filed her petition for compensation under the Vaccine Act on
January 7, 2016. On August 11, 2017, the undersigned awarded her compensation
based upon a stipulation she entered with the Secretary. Decision, 2017 WL
3910145. On November 29, 2017, Ms. McIntosh moved for an award of her fees
and costs, requesting $16,447.78.
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services), requires that the Court post this decision on its website.
Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of
medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any
redactions ordered by the special master will appear in the document posted on the website.
On December 13, 2017, respondent filed his response to Ms. McIntosh’s
motion. Respondent stated that he was “satisfied that the statutory and other legal
requirements for an award of attorneys’ fees and costs are met” and did not object
to Ms. McIntosh’s request. Resp’t’s Resp. at 2. Rather, respondent deferred to the
undersigned to “exercise his discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3.
Based on the rationale expressed in Swintosky v. Secʼy of Health & Human
Servs., No. 12-403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6, 2017), the
undersigned awarded Ms. McIntosh the full amount of her request for fees and
costs without reviewing the reasonableness of the request. Fees Decision, issued
Dec. 18, 2017, 2017 WL 6945565.
On January 16, 2018, respondent moved for a review of the undersigned’s
decision. Ms. McIntosh responded to the government’s motion on February 15,
2018, and the government replied on March 9, 2018. Oral argument was held in
front of Judge Horn on April 13, 2018. During the argument, the Court inquired
about the government’s participation in resolving motions for attorneys’ fees, and
the Secretary indicated that he would participate if ordered to do so:
THE COURT: If Special Master Moran, who may not
have wanted to do the work alone, . . . had decided . . .
I’m going to ask the Department of Justice to weigh in
here and issued an order to do that, what would the
Department have done?
MR. JOHNSON: [W]e obviously take our duty to
comply with orders seriously, and I think we have done
our best to provide some guidance to the special master.
Transcript, Oral Argument on April 13, 2018, 27-28.
Following argument, the Court granted respondent’s motion, stating that the
undersigned abused his discretion by awarding the fees motion without
independently reviewing the fees motion for reasonableness. Opinion and Order,
2018 WL 3343249, at *14 (Fed. Cl. June 14, 2018).
The Court also noted, however, that respondent had “inappropriately failed
to engage in the review of petitioner’s counsel’s specific request for attorneys’ fees
and costs.” Id. The Court further stated that the undersigned “could have ordered
the government to respond to petitioner's counsel's request for attorneys' fees and
costs.” Id. at 12. Judge Horn also noted that “[f]ailure to respond to a specific
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order issued by the Special Master would have been in violation of the court order
and Vaccine Rule 20,” leaving the undersigned able to determine an “appropriate
response.” Id. The Court remanded the matter for an adjudication of attorneys’
fees.
On June 28, 2018, citing the Court’s opinion, the undersigned ordered the
Secretary to respond to Ms. McIntosh’s motion for fees and costs, presenting
respondent with specific questions to answer pertaining to the reasonableness of
Ms. McIntosh’s motion.
On July 12, 2018, respondent filed a lengthy response, stating that, despite
Judge Horn’s statement, the undersigned did not have the authority to order
respondent to provide a substantive response to Ms. McIntosh’s motion for fees
and costs. Nevertheless, the Secretary did provide a substantive, albeit brief,
response. The Secretary stated that he continued to have no objection to the fee
application and that “if respondent had not stopped proposing ranges after the
special masters rejected that approach, respondent likely would have agreed to this
particular fee application being filed unopposed, since the overall amount falls
within the range respondent likely would have proposed.” Resp’t’s Resp. at 15.
Ms. McIntosh filed a reply on July 19, 2018. Although Ms. McIntosh
contended that much of the Secretary’s arguments in the Secretary’s July 12, 2018
response was “irrelevant” to her motion for attorneys’ fees and costs, she “feels
compelled to respond to Respondent’s filing.” Pet’r’s Reply, filed July 19, 2018,
at 2.
On July 19, 2018, Ms. McIntosh also filed a supplemental motion for fees
and costs, requesting an additional $49,062.35 in attorneys’ fees and costs for the
proceedings following the government’s motion for review. On July 30, 2018,
respondent filed his response to Ms. McIntosh’s fees motion, stating that he was
satisfied that the statutory requirements for an award of attorneys’ fees and costs
were met in the case and that the fees award was within the undersigned’s
discretion. On that same day, Ms. McIntosh filed a reply brief, arguing that, inter
alia, respondent’s decision to not present a position on petitioner’s request overly
burdens both petitioners and the court. Furthermore, Ms. McIntosh reiterated that
she has met her burden in establishing that her request for fees and costs is
reasonable.
Vaccine Rule 34 prescribes that this second fees motion “may be decided
either by the assigned judge or by the special master on remand.” Through
informal communication, Judge Horn has directed that the undersigned evaluate
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Ms. McIntosh’s supplemental fees motion. Thus, the two motions are ripe for
adjudication.
Analysis
Because Ms. McIntosh received compensation, she is entitled to a
reasonable amount of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Those
two components are discussed below.
I. Attorneys’ Fees
To determine reasonable attorneys’ fees under the Vaccine Act, the Federal
Circuit has approved the lodestar approach. This is a two-step process. Avera v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, the
court determines an “initial estimate . . . 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)). Second, the court may
make an upward or downward departure from the initial calculation of the fee
award based on specific findings. Id. at 1348. Here, an adjustment is not required.
A. Reasonable Hourly Rates
Ms. McIntosh’s two fees motions request reimbursement for work
performed by multiple attorneys, paralegals, and law clerks. The undersigned
finds the requested rates to be reasonable.
B. Reasonable Number of Hours
In the original motion for the proceedings prior to the motion for review,
Ms. McIntosh requested compensation for 26.7 hours of work from attorneys and
40.5 hours of work from paralegals and law clerks. The undersigned finds the
requested hours to be reasonable for a case of this nature. See Resp’t’s Resp., filed
July 12, 2018.
For the proceedings following the motion for review, Ms. McIntosh
requested compensation for 139 hours of work from attorneys and 7.7 hours of
work from paralegals and law clerks.
The undersigned has some concern about the sheer number of hours
expended preparing the brief submitted on the motion for review as well as the
hours spent preparing for oral argument in front of Judge Horn. Comments on the
reasonableness of the billing entries from respondent might have been informative
because respondent’s attorneys were filing briefs and preparing for oral argument
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on the same issues of law. However, in response to the motion for supplemental
fees, respondent has not provided any substantive analysis.
Although the number of hours spent responding to the motion for review is
larger than typical, the number is basically reasonable. Primarily, before the
judges at the Court of Federal Claims answered the question, the issue of whether
special masters may find the Secretary waived any objections to the amount
requested in attorneys’ fees and costs after the Secretary defers to the special
masters’ expertise was unresolved. The judges have now answered the question.
But, at the time of responding to the motion for review, Ms. McIntosh’s counsel
was arguing an open question. The novelty of the issue justifies the investment of
time and resources. In addition, the Secretary’s motion for review necessitated
research and argument that had not been put forth before the special master. The
more refined arguments in the Secretary’s motion for review further explains why
the number of hours devoted by Ms. McIntosh’s counsel is relatively high.
Finally, the Court conducted oral argument and the preparation for oral argument
naturally required time. Actually, preparation for oral argument occurred twice as
the Court had closed for inclement weather on the original date for oral argument.
While the number of requested hours is generally reasonable, some entries
are excessive and not consistent with requirements for attorneys’ fees awards in
this Program. The records indicate that an attorney at times performed tasks of a
paralegal, such as preparing the table of contents and a title page. When an
attorney does the work of a paralegal or administrative assistant, he or she should
be paid a rate commensurate with the nature of the work. See Valdes v. Sec'y of
Health & Human Servs., 89 Fed. Cl. 415, 425 (2009) (noting that “the Special
Master exercised appropriate discretion in denying requested costs for work
performed by Petitioner's counsel's associate” when the special master determined
“that the associate's time spent obtaining medical records was more consistent with
paralegal duties”). Similarly, paralegals sometimes performed clerical tasks, such
as filing documents, for which there should be no charge. Activities that are
“purely clerical or secretarial tasks should not be billed at a paralegal rate,
regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274, 288 n.10,
109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989). The undersigned finds that a reduction of
$1,000 is appropriate to address these concerns.
II. Costs
The Vaccine Act also permits an award of costs. 42 U.S.C. § 300aa-15(e).
Like attorneys’ fees, a request for reimbursement of incurred costs must be
reasonable and supported by documentation. See Perreira v. Sec’y of Health &
Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
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When a requested cost does not appear reasonable, special masters may not award
such a cost if it is undocumented and explained. See Riggins v. Sec’y of Health &
Human Servs., No. 99-382V, 2009 WL 3319818, at *15 (Fed. Cl. Spec. Mstr. June
15, 2009), mot. for rev. den’d (slip op. Dec. 10, 2009), aff’d, 406 F. App’x 479
(Fed. Cir. 2011); Long v. Sec’y of Health & Human Servs., No. 91-326, 1995 WL
774600, at *8 (Fed. Cl. Spec. Mstr. Dec. 21, 1995) (special masters “cannot
compensate petitioner for undocumented, unexplained charges”).
Here, Ms. McIntosh moves for reimbursement of $1,307.98 in costs
associated with the proceedings before the motion for review and $2,592.15 in
costs associated with proceedings following the motion for review. All costs
associated with the proceedings prior to the motion for review appear reasonable
and are awarded in full.
However, for the proceedings following the motion for review, Ms.
McIntosh has requested reimbursement of $1,487.84 in costs related to legal
research. This represents more than half of all costs related to that portion of the
proceedings. While the motion for review involved questions of law that assuredly
required research on the part of Ms. McIntosh, the present motion failed to provide
any supporting documentation for the nearly fifteen hundred dollars’ worth of legal
research, documentation that is necessary to show that that these costs were
actually incurred specifically and are reasonable expenditures. See Forrest v.
Secʼy of Health & Human Servs., No. 10-32V, 2018 WL 3029330, at *3 (Fed. Cl.
Spec. Mstr. May 22, 2018) (noting that a subscription to a legal database is an
overhead costs). This omission is all the more striking when considering that Ms.
McIntosh included receipts for cabs and lunches of amounts less than $20.
Without the documentation, the undersigned is not inclined to deem the expenses
reasonable.
* * *
Accordingly, Ms. McIntosh is awarded:
A lump sum of $63,022.29 in the form of a check made payable to
petitioner and petitioner’s attorney, Jennifer Anne Gore Maglio.
This amount represents reimbursement of attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith. The Clerk’s Office is also directed to provide this
decision to the presiding judge pursuant to Vaccine Rule 28.1(a).
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S/Christian J. Moran
Christian J. Moran
Special Master
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