De Souza v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
EUGENIO PAULO DE SOUZA, *
* No. 17-100V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: July 3, 2018
*
SECRETARY OF HEALTH * Attorneys’ fees and costs
AND HUMAN SERVICES, *
*
*
Respondent. *
******************** *
Carol L. Gallagher, Linwood, NJ, for Petitioner;
Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Eugenio Paulo De Souza prevailed in a claim brought in the National
Childhood Vaccine Compensation Program. He is now seeking an award for
attorneys’ fees and costs. He is awarded $11,007.78.
* * *
Represented by attorney Carol L. Gallagher, Mr. De Souza filed a petition
on January 23, 2017, alleging that an influenza vaccination caused him to suffer
from Guillain-Barré syndrome. The parties resolved the case informally and
1
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.
presented a stipulation that was incorporated by a decision. Decision, 2018 WL
945862 (Jan. 26, 2018).
On March 15, 2018, Mr. De Souza filed a motion for an award of attorneys’
fees and costs. The motion seeks a total of $33,643.42, comprised of $32,993.50
in attorneys’ fees, $514.55 in costs borne Ms. Gallagher’s firm, and $135.37 in
costs Mr. De Souza incurred personally.
The next day, the Secretary filed a response to Mr. De Souza’s motion. The
Secretary represented that he “is satisfied the statutory requirements for an award
of attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed March 16,
2018, at 2. With respect to the amount, the Secretary recommended “that the
special master exercise his discretion” when determining a reasonable award for
attorneys’ fees and costs. Id. at 3.
This matter is now ripe for adjudication.
* * *
Because Mr. De Souza received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the
unresolved question is what is a reasonable amount of attorneys’ fees and costs?
I. Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a 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, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
A. Reasonable Hourly Rate
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
2
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, Ms. Gallagher’s work
was done outside of the District of Columbia.
Mr. De Souza requests compensation for one attorney, Ms. Gallagher. Ms.
Gallagher has not included any request for paralegal work. Ms. Gallagher seeks
compensation at an hourly rate of $350, $363, and $400 per hour for her work in
2016, 2017, and 2018 respectively.
The proposed rate of compensation exceeds what some special masters have
awarded. The foundational decision for Ms. Gallagher’s hourly rate is Gonzalez v.
Secʼy of Health & Human Servs., No. 14-1072V, 2015 WL 10435023 (Fed. Cl.
Spec. Mstr. Nov. 10, 2015). Gonzalez analyzed Ms. Gallagher’s experience to
determine that a reasonable hourly rate for her work in 2015 was $315 per hour.
Id. at *8-12. Due to the thoroughness of its analysis, Gonzalez is persuasive.2
Gonzalez serves a starting point for determining a reasonable hourly rate for
years after 2015. Based upon Gonzalez, a reasonable hourly rate for Ms. Gallagher
in 2016 is $318 per hour. Kerrigan v. Secʼy of Health & Human Servs., No. 16-
270V, 2016 WL 7474133, at *3 (Fed. Cl. Spec. Mstr. Nov. 7, 2016) (using CPI as
an inflation index), mot. for reconsideration denied, 2016 WL 7575240 (Fed. Cl.
Spec. Mstr. Nov. 22, 2016).
The 2016 hourly rate, in turn, can be adjusted using the PPI-OL for
determining a reasonable hourly rate for 2017. The increase in PPI-OL for 2017 is
approximately 3 percent, meaning that a reasonable rate for Ms. Gallagher’s work
in 2017 is $327.30 per hour. The increase in PPI-OL for 2018 is also
2
While Ms. Gallagher cites other cases in which she was awarded higher
hourly rates, those decisions lack the detailed analysis found in Gonzalez. The
undersigned has also considered the affidavits from two attorneys indicating that
$400 per hour is a reasonable hourly rate. However, these affidavits are
conclusory and provide little basis (and certainly no persuasive basis) for deviating
from the sound analysis in Gonzalez.
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approximately 3 percent, meaning that a reasonable rate for Ms. Gallagher’s work
in 2018 is $338.33 per hour.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
To facilitate the process of evaluating the reasonableness of an attorney’s
activities, in November 2004, the Office of Special Masters issued revised
Guidelines for attorneys. The Guidelines state “counsel are advised to maintain
detailed contemporaneous records of time and funds expended under the Program.”
Office of Special Masters, Guidelines for Practice under the National Vaccine
Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated
another way, non-vague) contemporaneous records are the petitioner’s
responsibility and allow the Office of Special Masters to determine the
reasonableness of attorneys’ fees requests. See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit
effective review of the fees is in accord with cases from the Federal Circuit and the
Supreme Court).
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”); Riggins v. Sec’y of Health & Human Servs.,
No. 99-382V, 2009 WL 3319818, at *25 (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).
Attorneys should not charge for the performance of secretarial / clerical
tasks. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989); Bennett v. Dep’t of
Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983); Guy v. Sec'y of Health & Human
Servs., 38 Fed. Cl. 403, 407-08 (1997). One example of a clerical task for which a
charge is not appropriate is filing documents. Guerrero v Secʼy of Health &
Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May
22, 2015) (citing cases), mot. for rev. den’d in relevant part and granted in non-
relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-1753 (Fed.
Cir. Apr. 22, 2016).
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Here, the Secretary did not directly challenge any of the requested hours as
unreasonable. In light of the Secretary’s lack of objection, the undersigned has
reviewed the fee application for its reasonableness. See Shea v. Sec’y of Health &
Human Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec.
10, 2015) (“special masters are not obligated to evaluate an attorney’s billing
records on a line-by-line basis in making the reasonableness determination … and
certainly need not do so when Respondent has not attempted to highlight any
specific alleged inefficiencies”).
Ms. Gallagher’s timesheets present little information that demonstrates the
reasonableness of her activities. Many entries are something like “Preparation of
e-mail to client.” This entry does not describe the purpose or the topic of
communication. As a result, it is not clear whether the communication required the
advanced skills of an attorney or could be accomplished by a paralegal. Given the
posture of the case, it is likely that a paralegal could have handled the
communication, especially when the topic concerned gathering medical records.
Furthermore, the vagueness in entries cannot be excused on account of the
communication being with Ms. Gallagher’s client because “[A]dequately
identif[ing] the purpose of these activities” does “not in most cases invade the
attorney-client privilege when applied to client communications.” Avgoustis, 639
F.3d at 1344-45.
Ms. Gallagher has been criticized for charging attorney rates for work that a
paralegal or secretary could perform and for creating entries that are so vague that
their reasonableness cannot be easily assessed. Ploughe v. Secʼy of Health &
Human Servs., No. 14-626V, 2017 WL 4455632, at *4 (Fed. Cl. Spec. Mstr. Sep.
11, 2017) (reducing fees by 15 percent); Gonzalez, 2015 WL 10435023, at *13-14
(also finding a reasonable rate for paralegals to be $80 per hour).
In this case, the number of hours will be reduced by 35 percent. Ms.
Gallagher has previously informed about the deficiencies in how she records her
time and, it appears that, Ms. Gallagher has not changed her practice. In addition,
to the extent information about Ms. Gallagher’s work can be gleaned from the
timesheets, much of the work could have been performed by a paralegal, whose
hourly rate would be approximately 25 percent of Ms. Gallagher hourly rate, and
some work appears to be clerical for which there should be no charge. Under these
circumstances, a reasonable estimate of the number of hours to reduce is 35
5
percent. See Fox v. Vice, 563 U.S. 836, 838 (2011) (indicating that trial courts
may use “rough justice” in awarding attorneys’ fees).
After adjustments for the hourly rate and number of hours, Mr. De Souza is
awarded $10,357.86 in attorneys’ fees.
II. Costs
In addition to seeking an award for attorneys’ fees, Mr. De Souza seeks
compensation for costs (his own costs incurred personally and his attorney’s costs)
expended, totaling $649.92. The costs are for routine items such as medical
records and the filing fee, are reasonable and adequately documented. Mr. De
Souza is awarded them in full.
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $11,007.78 ($10,357.86 in fees and $649.92 in
costs) to be a reasonable amount for all attorneys’ fees and costs incurred. The
undersigned GRANTS the petitioner’s motion and awards $11,007.78 in attorneys’
fees and costs. This shall be paid as follows:
a. A lump sum of $10,872.41 in the form of a check made payable to
petitioner and petitioner’s attorney, Carol Gallagher, for attorneys’
fees and costs available under 42 U.S.C. § 300aa-15(e), and
b. A lump sum of $135.37 in the form of a check made payable to
petitioner alone for 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.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
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.
6