May v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
GLENDELLA MAY, *
* No. 17-081V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: June 15, 2018
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees & costs.
*
Respondent. *
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John William Grimm, The Limbaugh Firm, Cape Girardeau, MO, for petitioner;
Althea Davis, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Glendella May brought a successful petition for compensation from the
National Childhood Vaccine Compensation Program. She now seeks an award for
attorneys’ fees and costs. She is awarded her requested amount in full, $9,063.13.
* * *
Represented by John William Grimm, Ms. May filed her petition for
compensation on January 18, 2017. Ms. May claimed that a flu vaccination she
received on November 26, 2014, which is contained in the Vaccine Injury Table,
42 C.F.R. §100.3(a), caused her to suffer Guillain-Barré syndrome. The parties
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.
were able to informally resolve the case, entering a joint stipulation that was then
adopted. Decision, issued Jan. 16, 2018, 2018 WL 1023025.
On February 2, 2018, petitioner moved for reimbursement of attorneys’ fees
and costs, requesting $8,610.00 in fees and $453.13 in costs.
Six days later, respondent filed his response to petitioner’s motion. In his
response, respondent did not object to petitioner’s request. Resp’t’s Resp. at 2.
Instead, respondent stated that he “defers to the Special Master to determine
whether or not petitioner has met the legal standard for an interim fees and costs
award” and that aside from the issue of whether an interim fees award is
appropriate, he is “satisfied that the statutory and other legal requirements for an
award of attorneys’ fees and costs are met.” Id.This matter is now ripe for adjudication.
* * *
Because Ms. May received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether Ms. May’s requested amount is reasonable.
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.
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.
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
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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, all the attorney’s work
was done outside of the District of Columbia. Petitioner requests $275.00 per hour
for 2016, $300 per hour for 2017, and $325 per hour for 2018.2 Petitioner supports
her requested rates through affidavits from her attorney and his peers. See Pet’r’s
exhibits E, F, and G. The requested rates are reasonable.
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).
The Secretary also 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”).
The entries describe the activities with sufficient detail that the
reasonableness of the work may be assessed. In general, the work and the charge
for the work are reasonable.
C. Costs
Petitioner also requests $453.13 in costs, comprising the $400.00 filing fee
and $53.13 for the cost of obtaining medical records. These costs are reasonable
and are also awarded in full.
2
The year-to-year increase in rates is higher than typical, in the
undersigned’s experience. However, each of the rates falls within the bounds of a
reasonable hourly rate.
3
* * *
Accordingly, petitioner is awarded:
A lump sum of $9,063.13 in the form of a check made payable to
petitioner and petitioner’s attorney, John Grimm.
These amounts represents reimbursement 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.
s/Christian J. Moran
Christian J. Moran
Special Master
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