MacKey v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1289V
Filed: May 10, 2018
* * * * * * * * * * * * * * *
NICOLE MACKEY, *
* PUBLISHED
Petitioner, *
v. * Special Master Oler
*
SECRETARY OF HEALTH * Decision on Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Bradley S. Freedberg, Brad Freedberg Attorney at Law, Denver, CO, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 6, 2016, Petitioner, (Nicole Mackey), filed a petition for compensation in the
National Vaccine Injury Compensation Program (“the Program”),2 alleging that she suffered
Parsonage Turner Syndrome, “shoulder injury related to flu vaccine, bursitis, brachial
plexopathy, neuromuscular symptoms, tendonitis, brachial neuritis and neuropathy,” as a result
of receiving an influenza (“flu”) vaccine on October 7, 2013. ECF No. 1 at ¶¶ 4, 18. The parties
filed a joint stipulation on August 1, 2017, representing that they had reached a settlement and
that a decision should be entered awarding compensation in this case. ECF No. 19 at 2, ¶7. The
special master previously assigned to this case issued a Decision on August 2, 2017, adopting the
parties’ stipulation and awarding compensation. ECF No. 20.
1
Because this 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, 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 (“Vaccine Act” or “Vaccine Program”), 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).
1
Petitioner now seeks an award of attorneys’ fees and costs, requesting $27,195.75 in
attorneys’ fees and $500 in costs for a total of $27,695.75.3 After careful consideration, I grant
the request in substantial part, but deny in part, awarding a total of $19,002.67, for the reasons
set forth below.
I. Relevant Procedural History Regarding Attorneys’ Fees and Costs
On August 21, 2017, Petitioner filed a motion for attorneys’ fees and costs (AFC
Motion), requesting $31,995.00 in attorneys’ fees for counsel Bradley S. Freedberg and Greg
Cairns, and $500.00 in costs, for a total of $32,495.00. Petitioner’s (“Petr’s”) Application
(“App.”) dated August 21, 2017, ECF No. 22 at 2.4 Attached to her AFC Motion, Petitioner
submitted a document labeled “Exhibit A” (see ECF No. 22-1 (“Ex. A”)), comprised of: (1) an
affidavit of Attorney Bradley S. Freedberg (id. at 1-3); (2) an October 2015 retainer agreement
between Petitioner and her attorneys (id. at 4); (3) handwritten billing entries that Mr. Freedberg
represents reflect his hours billed by him (id. at 5-6); and (4) billing entries reflecting the hours
billed by Mr. Cairns (id. at 7-8).
Respondent filed a response to Petitioner’s AFC motion on August 23, 2017.
Respondent’s Response, dated August 23, 2017, ECF No. 23. Respondent argues that “[n]either
the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a
request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds,
however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case.” Id. at 2. Additionally, he “respectfully recommends that [I] exercise [my]
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
This case was transferred to my docket on December 5, 2017. ECF No. 29. I issued a
detailed order on February 12, 2018, highlighting several deficiencies with Petitioner’s AFC
motion, and ordering Petitioner to rectify those inadequacies. See Order To Supplement
Petitioner’s Motion For Attorneys’ Fees and Costs, ECF No. 31. In my order of February 12,
2018, I highlighted (1) that Petitioner’s AFC Motion lacked an updated signed statement
indicating that Ms. Mackey did not incur any out-of-pocket expenses throughout the pendency of
3
As explained infra, Petitioner originally requested $31,995.00 in attorneys’ fees and $500.00 in
costs, for a total of $32,495.00. See ECF No. 22 at 2. On February 20, 2018, however, Petitioner
reduced her fees request, now seeking $27,195.75 in attorneys’ fees and $500 in costs, for a total
of $27,695.75. See ECF No. 32.
4
Petitioner filed her application for attorneys’ fees and costs without proper pagination. See
generally Petr’s App. Thus, for ease of reference, I will use the page numbers generated from
the CM/ECF filing reflected at the top of the page. Therefore, the page entitled “Application For
Award Of Attorneys Fees To Counsel For Petitioner” will be cited as “Petr’s App. at 1” with
subsequent pages numbered accordingly.
2
this case, as required by the Vaccine Program’s Guidelines for Practice5 and General Order #96
(see ECF No. 31 at 2); (2) that the requested hourly rates in the AFC Motion for the work
performed by Messrs. Freedberg and Cairns, were “well-above the respective accepted ranges of
rates for attorneys with comparable experience in the Vaccine Program” (id. at 3)7; and (3) that
my review of the billing entries attached to the AFC Motion revealed that several of the hours
billed by Mr. Freedberg and Mr. Cairns at their requested attorney rates were more appropriately
classified as either paralegal time or clerical tasks (id. at 4).8 I thus requested that Petitioner file
supporting documentation to correct those deficiencies, and to submit a memorandum of law
citing the proper legal authority to justify the hourly rates requested in her AFC Motion for her
attorneys. Id. at 4.
On February 20, 2018, Petitioner filed a statement in compliance with General Order # 9
(see ECF No. 33), and a document entitled “Supplement To Attorney’s [sic] Fee Application For
Petitioner” (see ECF No. 32, hereafter “AFC Supplement”),9 partly responding to the issues I
raised in my order of February 12, 2018. Petitioner’s AFC Supplement stated that “this was and
is the very first Vaccine matter handled by [Mr. Freedberg]” and that “there is a learning curve
5
Guidelines for Practice Under the National Vaccine Injury Compensation Program
("Guidelines for Practice") at 69 (revised April 21, 2016) found at
http://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-4212016.pdf
(last visited on Apr. 30, 2018) (Section X, Chapter 3, Part B(3)).
6
See General Order #9 found at
https://www.uscfc.uscourts.gov/sites/default/files/General%20Order%20No.%209.pdf (last
visited on Apr. 30, 2018).
7
In articulating my reasons for why I deemed the hourly rates requested in this case to be much
higher than those generally granted for attorneys of comparable experience in the Vaccine
Program, I cited to the 2015-2016 and 2017 Fees Schedules posted on this Court’s website -- i.e.,
fees schedules which, as explained infra, provide a framework for how special masters generally
determine reasonable “in forum” hourly rates in the Vaccine Program. See ECF No. 31 at 3, n.
5, 7.
8
In my order of February 12, 2018, I cited to several reflective examples of non-attorney work
billed at an attorney’s hourly rate by Mr. Freedberg and by Mr. Cairns. See ECF No. 31 at 3, n.
9 (citing Mr. Freedberg’s handwritten billing entries reflecting time billed at an attorney rate for
tasks such as “[r]eview[ing] Bate Stamp Assembly” and to “calendar” various deadlines outlined
in Scheduling Orders issued by this Court (see Ex. A at 5); also citing Mr. Cairns’ billing entries
reflecting time billed for assembling medical records (see Ex. A at 7).
9
Petitioner filed her AFC Supplement without proper pagination. See generally AFC
Supplement. Thus, for ease of reference, I will use the page numbers generated from the
CM/ECF filing reflected at the top of the page. Therefore, the page entitled “Supplement To
Attorney’s Fee Application For Petitioner” will be cited as “AFC Supplement at 1” with
subsequent pages numbered accordingly.
3
necessarily associated with the prosecution of this matter.” Id. at 1. With regard to the hourly
rate, the AFC Supplement stated:
If indeed the hourly rate is excessive as claimed by [my order of February 12, 2018] for
[Mr. Freedberg] and associate counsel Cairns then so be it, neither [attorneys] take any
issue at the adjustment of rates to what is reasonable and appropriate under the
circumstances. Both [counsel] simply wish to get paid for the successful prosecution of
the claim which remained open for months and months and for which neither have yet
been paid a dime.
AFC Supplement at 1. Additionally, Petitioner’s AFC Supplement stated that both of her
counsel in this case had “adjusted their time” to reflect the cutting of “ministerial tasks,” and that
the administrative task of Bate stamping of medical records was accomplished while conducting
review of those records. Id. at 2.
Petitioner’s AFC Supplement did not include a memorandum of law citing the proper
legal authority justifying Petitioner’s attorneys’ hourly rates requested in this case. See AFC
Supplement at 2. Instead, Petitioner (1) argued that her attorneys’ requested rates “are not
obtusely divergent from the reasonable hourly fees cited and recognized by the special master [in
my order of February 12, 2018]” (id.), and (2) reduced her overall fees request by fifteen percent
-- “for expediency sake” -- now requesting $27,195.75 in attorneys’ fees, and $500 in costs for a
revised requested total of $27,695.75 (id.).
On March 6, 2018, Respondent’s counsel, with Petitioner’s counsel copied on the
communication, emailed a member of my staff informing me that Respondent would not be
filing a response to Petitioner’s AFC Supplement. Thus, this matter is now ripe for decision.
II. Applicable Law and Discussion
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 also Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Thus, as a successful
Vaccine Act petitioner, Ms. Mackey is entitled to a fees and costs award.
A. Reasonable Hourly Rates and Time Expended
i. Requested Hourly Rates
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.
4
Special masters have substantial discretion in awarding fees 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. Cl.
201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner’s fee
application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).
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.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, 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
attorney’s 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 (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)).
In this case, the entirety of the counsel of record’s work was performed in Denver,
Colorado. See Petr’s App. at 2; see also Ex. A at 5-6. A previous special master has awarded
forum rates to legal professionals practicing in the Greater Denver, Colorado area. See Miranda
v. Sec’y of Health & Human Servs., No. 10-776V, 2016 WL 3092239 (Fed. Cl. Spec. Mstr. May
5, 2016).10 I am persuaded that it is appropriate to award forum rates for attorneys practicing in
Denver; thus, forum rates apply in this case.
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. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the
decision in McCulloch and has issued a Fee Schedule for subsequent years.11
10
In Miranda, the special master granted forum rates to Petitioner’s counsel located in
Greenwood Village, Colorado -- a city that is part of the Denver-Aurora-Lakewood, Colorado
Metropolitan Division. See 2016 WL 3092239; see also May 2017 Metropolitan and
Nonmetropolitan Area Definitions, Bureau of Labor Statistics (last visited on Apr. 27, 2018),
https://www.bls.gov/oes/current/msa_def.htm.
11
The fee schedules are posted on this Court’s website. See Office of Special Masters,
Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016,
https://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-
2016.pdf (last visited on Apr. 27, 2018); see also Office of Special Masters, Attorneys’ Forum
Hourly Rate Fee Schedule: 2017, https://www.uscfc.uscourts.gov/sites/default/files/Attorneys-
Forum-Rate-Fee-Schedule-2017.pdf (last visited on Apr. 27, 2018).
5
a. Hourly rates for Mr. Freedberg
Petitioner’s AFC motion states that Mr. Freedberg has more than twenty-eight years of
experience practicing law. Petr’s App. at 1. The handwritten billing entries submitted in this
case by Mr. Freedberg reflect that he performed work on this case from September 2016 through
August 2017.12 See Ex. A at 5-6.
Accordingly, the 2015-2016 Hourly Rate Fee Schedule sets forth an attorneys’ fees
range of $350-$415 per hour for an attorney of Mr. Freedberg’s experience (between 20-30 years
of experience in practice).13 Similarly, the 2017 Hourly Rate Fee Schedule sets forth an
attorneys’ fees range of $358-$424 per hour for an attorney of Mr. Freedberg’s experience.14
As Petitioner’s AFC Supplement points out above, this instant matter was the first
Vaccine Act case brought by Mr. Freedberg, and thus I find that the lower end of the McCulloch
fees range is an appropriate hourly rate. See Srour v. Sec’y of Health & Human Servs., No. 14-
283V, 2017 WL 2537373, at *4 (Fed. Cl. Spec. Mstr. May 17, 2017) (awarding hourly rate based
in part on “specific experience with the Vaccine Program”); Dipietro v. Sec’y of Health &
Human Servs., No. 15-742V, 2016 WL 7384131, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016)
12
I note that when examined in conjunction with the “Demand For Relief” articulated in
Petitioner’s initial petition filed on October 6, 2016 (see ECF No. 1 at ¶ 20), the intrinsic nature
of the handwritten billing entries -- i.e., billing entries that do not appear on an official law firm
letterhead and in which Mr. Freedberg block bills time in half-hour increments -- makes it
difficult for me to discern whether those entries are contemporaneously-recorded entries
reflecting the work performed by Mr. Freedberg in this case (see Ex. A at 5-6). Specifically, in
her petition filed on October 6, 2016, Petitioner made the following “Demand For Relief” for her
attorneys in this case:
In addition, Petitioner hereby requests the award of attorneys fees in the amount of
$35,000 as a flat fee incurred by her based on an approximation of incurred attorneys fee
time of from 55-80 hours of time related to the research, investigation and presentation of
her claims, plus costs of suit, and such other and further relief that she may be entitled to.
ECF No. 1 at ¶ 20, emphasis added. The above statement -- in which Petitioner projected as of
the date of the filing of her petition that her attorneys would be billing between 55-80 hours in
this case -- raises a question as to the contemporaneous nature of Mr. Freedberg’s billing entries.
Nonetheless, I accept Petitioner’s representations in her AFC Motion stating that Mr.
Freedberg’s handwritten billing entries do reflect “contemporaneous time entries.” Petr’s App.
at 1.
13
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016, supra
at n.11.
14
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017, supra at
n.11.
6
(considering level of experience in the Vaccine Program in determining appropriate hourly rate).
Thus, I find that Mr. Freedberg is entitled to an hourly rate of $350.00 for work performed in
2016, and an hourly rate of $358.00 for work performed in 2017.
b. Hourly rates for Mr. Cairns
Petitioner’s AFC motion states that Mr. Cairns has more than thirty years of experience
practicing law (see Petr’s App. at 1-2), and the billing entries submitted by Mr. Cairns reflect
him performing work on this case from August 2016 through January 2017 (see Ex. A at 7-8).
As I noted in my order of February 12, 2018, Mr. Cairns would normally be entitled to
hourly rates in accordance with his experience, as listed in the 2015-2016 and 2017 Hourly Rate
Fee Schedules posted on this Court’s website. See ECF No. 31 at 3, n. 7 (citing OSM Attorneys’
Forum Hourly Rate Fee Schedules for 2015-2016 and 2017). It has come to my attention since
my order of February 12, 2018, however, that Mr. Cairns is not admitted to practice in the Court
of Federal Claims.15 In order to be eligible to practice in the Vaccine Program, an attorney must
be admitted to practice in the Court of Federal Claims. See Vaccine Rule 14(a)(1).16
Specifically, Vaccine Rule 14(a)(1) states as follows:
An attorney is eligible to practice before the Office of Special Masters if the attorney is a
member of the bar of the United States Court of Federal Claims under RCFC 83.1 and
complies with the Vaccine Rules.
Vaccine Rule 14(a)(1). Moreover, the Vaccine Rules make clear that there can be only one
attorney of record at any point in a case, stating as follows:
A party may have only one attorney of record in a case at any one time and, with the
exception of a pro se litigant appearing under Vaccine Rule 14(a)(1), must be represented
by an attorney (not a firm) admitted to practice before the Court of Federal Claims. Any
attorney assisting the attorney of record must be designated “of counsel.”
Vaccine Rule 14(b)(1).17 An attorney who is not eligible to practice in the Vaccine Program
cannot recover attorneys’ fees in certain circumstances. Underwood v. Sec’y of Health & Human
Servs., No. 00-357V, 2013 WL 3157525, at *4 (Fed. Cl. Spec. Mstr. May 31, 2013).
Furthermore, an attorney who is not admitted to practice before this Court is also not eligible to
15
The Clerk’s Office of the Court of Federal Claims confirmed that Mr. Cairns is not admitted to
this Court’s Bar.
16
Vaccine Rules, Appendix B, Rules Of The United States Court of Federal Claims ("Vaccine
Rules") at 125 (as amended through August 1, 2017) found at
https://www.uscfc.uscourts.gov/sites/default/files/170801VaccineRules.pdf
(last visited on Apr. 30, 2018).
17
See Vaccine Rules at 125, supra at n.16.
7
serve “of counsel” and collect fees at an attorneys’ rate for his work. Id.
As an initial matter, I note that it was unreasonable for Petitioner’s counsel of record, Mr.
Freedberg, to have Mr. Cairns as an “associated counsel”18 in this case, without ensuring that he
was also admitted to this Court’s Bar.19 In doing so, Mr. Freedberg operated outside the Vaccine
Rules and the Court of Federal Claims Rules.20 Mr. Cairns continued to bill time at an attorney’s
hourly rate for the work performed by him starting in August 2016 until January 2017, despite
knowing that he was not admitted to practice in this Court. In a prior case in which a petitioner
requested fees for work performed by two attorneys with a co-counsel arrangement -- and where
one co-counsel was admitted to this Court’s Bar, while the second co-counsel was not admitted
to this Court’s Bar throughout the pendency of the Vaccine Act case -- the presiding special
master refused to award the majority of the non-admitted counsel’s fees. See Avila v. Sec'y of
Health & Human Servs., No. 14-605V, 2016 WL 6995372, at *3 (Fed. Cl. Spec. Mstr. Nov. 4,
18
Petitioner’s AFC Motion refers to Mr. Cairns as an “associated counsel” to Mr. Freedberg in
this case. Petr’s App. at 1.
19
This is especially so in light of my examining the retainer agreement submitted with
Petitioner’s AFC Motion (see Ex. A at 4), which reflects that Petitioner signed a retainer
agreement with Mr. Freedberg’s law firm agreeing to have “associated counsel,” Mr. Cairns,
assist Mr. Freedberg in this case as of October 6, 2015 (id.). If the date reflected on Petitioner’s
signed retainer agreement is in fact accurate -- i.e., October 6, 2015 (id.) -- then Mr. Cairns, and
by association Mr. Freedberg, under whose law firm letterhead Petitioner signed her retainer
agreement, had an entire year prior to the filing of this petition on October 6, 2016 (see ECF No.
1), to have Mr. Cairns admitted to this Court’s Bar.
It is also possible that the signed retainer agreement reflects a typographical error made
by Ms. Mackey, in which she dated the retainer agreement for October 6, 2015, but instead
intended to date the agreement for October 6, 2016. Compare Ex. A at 4 (reflecting Ms.
Mackey’s signature on the retainer agreement dated as of October 6, 2015), with ECF No. 1
(reflecting that the petition was filed in this case on October 6, 2016). I note, however, that my
order of February 12, 2018, provided Petitioner forty-five days to further supplement the record
of this case. Instead, Petitioner filed a response in which she simply reduced her attorneys’ fees
request by fifteen percent. See AFC Supplement at 2, filed on February 20, 2018. Thus, without
additional documentation, it is unclear from the existing record if the date reflected on the signed
retainer agreement was in fact a typographical error.
Assuming, arguendo, that the date reflected in the retainer agreement was a typographical
error, this fact does not change my analysis. I still find that Mr. Freedberg and Mr. Cairns should
have ensured that Mr. Cairns was officially admitted to this Court’s Bar.
20
Rules Of The United States Court of Federal Claims ("Court of Federal Claims Rules") at 98
(as amended through August 1, 2017) found at
https://www.uscfc.uscourts.gov/sites/default/files/17.08.01%20FINAL%20Version%20of%20Ru
les 1.pdf (last visited on Apr. 30, 2018).
8
2016) (special master denying fees to the co-counsel who was not admitted to this Court’s Bar,
starting from the date his admitted co-counsel officially began to represent petitioner for her
Vaccine Act petition). Moreover, when special masters have awarded fees to attorneys not
admitted to this Court’s Bar, and/or who did not appear in the matter formally, they have done so
in the context of attorneys who refer cases to practitioners in the Vaccine Program, and whose
work predated the filing of the petitioner’s Vaccine Act petition. See, e.g., Barrett v. Sec'y of
Health & Human Servs., No. 09–389, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014)
(only awarding fees to an attorney whose work on petitioner's claim predated the filing of the
petition); 21 Avila, 2016 WL 6995372, supra.
Having considered the overall circumstances of this case, however, where Petitioner was
awarded compensation for her Vaccine Act petition, and the fact that this was the first case in the
Vaccine Program for her counsel of record, Mr. Freedberg, and “associated counsel,” Mr. Cairns,
I will award some fees for the work performed by Mr. Cairns. The work performed by Mr.
Cairns will not be compensated at the applicable rate for an attorney of his experience, however;
rather, I find Mr. Cairns’ work in this case to be a supportive role to Mr. Freedberg’s primary
prosecution of this case. My finding that Mr. Cairns’ involvement in this case is more akin to
that of a supportive, paralegal role is further strengthened by my close examination of Mr.
Cairns’ billing invoices prior to the filing of Petitioner’s Vaccine Act case on October 6, 2016,
reflecting numerous billing entries in which he performs non-attorney level work that is
generally performed by a paralegal. See, e.g., Ex. A at 7, billing entry of 8/28/2016 (“[a]ssemble
medical records for complaint”); Id., billing entry of 9/8/2016 (“[r]eview and revise exhibit
packet for complaint”); Id., billing entry of 9/9/2016 (“[r]eview and revise exhibit packet for
complaint”); Id. at 7-8, billing entry of 9/19/2016 (“[r]eview and update medical record set for
complaint”); Id. at 8, billing entry of 9/28/2016 (“[a]ssemble additional medical records for
complaint and Bate stamp all pages”). These billing entries further highlight Mr. Cairns’
ancillary role in the prosecution of this claim when examined in conjunction with Mr.
Freedberg’s billing entries -- entries that reflect Mr. Freedberg billing for duplicative work
already performed by Mr. Cairns, such as reviewing Petitioner’s medical records and reviewing
“Bate Stamp Assembly” of medical records. See Ex. A at 5.
Accordingly, I find it appropriate to use the hourly range applicable for non-attorney-
level work, as listed in the 2015-2016 and 2017 Hourly Rate Fee Schedules -- i.e., $125-$145 for
21
I note that Mr. Cairns billed time in this case starting on August 28, 2016 through January 31,
2017 (see Ex. A at 7-8), while Petitioner’s Vaccine Act case was filed on October 6, 2016, with
Mr. Freedberg as the counsel of record (see ECF No. 1). The submitted retainer agreement (see
Ex. A at 4), however, reflects that Mr. Freedberg, as primary counsel, and Mr. Cairns, as an
“associated counsel,” formally entered into an attorney-client relationship with Ms. Mackey in
this case as of October 6, 2015 (id.). Thus, Mr. Cairns’ role in this case cannot be deemed to be
that of an attorney who referred this case to Mr. Freedberg, as in Barrett. Nonetheless, as noted
infra, I deem the work performed by Mr. Cairns throughout the pendency of this case, especially
for the time period from August 28, 2016 through October 6, 2016, to be more akin to non-
attorney, paralegal work.
9
2016,22 and $128-148 for 2017.23 Cf. O’Neill v. Sec’y of Health & Human Servs., No. 08-243V,
2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (explaining that attorney
compensation for non-attorney-level work must be comparable to what would be paid for a
paralegal or secretary). Thus, I will award Mr. Cairns’ fees at a rate of $145.00 per hour for
work performed in 2016, and $148.00 per hour for work performed in 2017.
ii. Hours Reasonably Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.3d 1517, 1521 (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). Clerical and secretarial tasks should not be billed at all, regardless of who performs
them. See, e.g., McCulloch, 2015 WL 5634323, at *26. And “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).
Ultimately, 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, 102 Fed. Cl. at 728-29
(affirming the special master’s reduction of attorney and paralegal hours); see also Guy v. Sec’y
of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997).
As pointed out in my order of February 12, 2018, Petitioner’s AFC motion reflects that
several of the hours billed by Mr. Freedberg and Mr. Cairns at their attorney rates are more
appropriately classified as either paralegal time, or as clerical tasks.24 See ECF No. 31. In
response, Petitioner’s AFC Supplement attempts to justify some of her counsels’ billing entries
in this case, by stating, in relevant part, as follows:
22
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016, supra
at n.11.
23
See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2017, supra at
n.11.
24
In my order of February 12, 2018, I pointed out a few of Mr. Freedberg’s billing entries
reflecting time billed at an attorney rate for paralegal tasks such as “[r]eview[ing] Bate Stamp
Assembly,” and non-compensable tasks such as calendaring various deadlines outlined in
scheduling orders issued by this Court. See ECF No. 31 at 4, n.9 (citing Ex. A at 5).
10
[B]oth counsel as solo practitioners had indeed adjusted their time […] as previously
submitted to reflect ministerial tasks but also remind the court that in connection with the
first matter there was review, records were not just bate stamped they were reviewed as
they were assembled.
AFC Supplement at 2. Petitioner does provide a reasonable explanation as to why her fees
request -- reflecting time billed for a task such as reviewing “Bate Stamp Assembly” -- should
not be considered an administrative task, and thus time billed for that task will not be cut. Apart
from that specific task, however, Petitioner’s AFC Supplement does not provide a proper
explanation for why other administrative tasks that are reflected in her attorneys’ time sheets
should not be reduced. In this regard, I note that a majority of Mr. Freedberg’s billing entries
constitute block billing, wherein counsel billed for multiple tasks in a single entry. Some of the
blocks contain time that is not compensable, along with time that is compensable. For such
entries, it is impossible to determine the precise portion of the time billed that should be
compensated.25
Because it is counsel’s burden to document the fees claimed, I will reduce the total award
of attorneys’ fees, with the hourly rate modifications discussed above,26 by 5%. See Rodriguez v.
Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 29,
2009), at *8. See also Broekelschen v. Sec’y of Health & Human Servs., 2008 U.S. Claims
25
See, e.g., Ex. A at 5, entry of 10/7/2016 (reflecting Mr. Freedberg block billing for
compensable tasks, with a non-compensable task of “filing” documents); Id., entry of 10/8/2016
(reflecting Mr. Freedberg block billing for compensable tasks such as reviewing Court orders
and research, with non-compensable tasks such as cataloguing order and calendaring dates); Id.,
entry of 10/11/2016 (reflecting Mr. Freedberg block billing for compensable tasks such as
reviewing orders and pleadings, with a non-compensable task of calendaring dates); Id., entry of
10/17/2016 (reflecting Mr. Freedberg block billing for a compensable task such as reviewing a
scheduling order, with a non-compensable task of calendaring dates).
26
Mr. Freedberg billed a total of 47 hours, while Mr. Cairns billed a total of 19.4 hours in this
case. See App. at 1. Out of the 47 hours billed by Mr. Freedberg, 20.5 hours were billed in 2016,
while 26.5 hours were billed in 2017. See Ex. A at 5-6. Out of the 19.4 hours billed by Mr.
Cairns, 18.9 hours were billed in 2016, while 0.5 hours were billed in 2017. See Ex. A at 7-8.
Applying the hourly rates determined above leads to the following calculations:
$350 per hour for work performed by Mr. Freedberg in 2016 x 20.5 hours = $7,175.00
+ $358 per hour for work performed by Mr. Freedberg in 2017 x 26.5 hours = $9,487.00
+ $145 per hour for work performed by Mr. Cairns in 2016 x 18.9 hours = $2,740.50
+ $148 per hour for work performed by Mr. Cairns in 2017 x 0.5 hours = $74.00
Total attorneys’ fees = $19,476.50
11
LEXIS 399, at **13-14 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (reducing petitioner’s attorneys’
fees and criticizing her for block billing). Indeed, the Vaccine Program’s Guidelines for Practice
state as follows: “[e]ach task should have its own line entry indicating the amount of time spent
on that task. Lumping together several unrelated tasks in the same time entry frustrates the
court’s ability to assess the reasonableness of the request.”27
Accordingly, Petitioner is awarded $18,502.6728 in attorneys’ fees.
B. Reasonable Costs
Petitioner requests a total of $500.00 in attorneys’ costs. See App. at 1. The requested
costs consist of filing fees, and service and copying costs associated with prosecuting this claim.
Id. I find those costs to be reasonable and will grant them in full.
III. Total Award Summary
Based on the foregoing, I award a total of $19,002.67,29 representing reimbursement for
attorneys’ fees in the amount of $18,502.67 and costs in the amount of $500.00, in the form of a
check made payable jointly to Petitioner and Petitioner’s counsel, Bradley S. Freedberg, Esq.
The Clerk of the Court is directed to enter judgment in accordance with this Decision.30
IT IS SO ORDERED.
/s/ Katherine E. Oler
Katherine E. Oler
Special Master
27
Guidelines for Practice Under the National Vaccine Injury Compensation Program
("Guidelines for Practice") at 68 (revised April 21, 2016) found at
http://www.uscfc.uscourts.gov/sites/default/files/GUIDELINES-FOR-PRACTICE-4212016.pdf
(last visited on Apr. 27, 2018) (Section X, Chapter 3, Part B(1)(b)).
28
Reducing the total attorneys’ fees by 5% results in the following calculation:
$19,476.50 - ($19,476.50 x .05 = $973.83) = $18,502.67.
29
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).
30
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a
notice renouncing the right to seek review.
12