Kahn v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0789V
Filed: March 4, 2019
UNPUBLISHED
JASON KAHN,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Franklin John Caldwell, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On June 13, 2017, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
Act”). Petitioner alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
November 5, 2016. Petition at 1-3. On November 9, 2018, the undersigned issued a
decision awarding compensation to petitioner based on the respondent’s proffer. ECF
No. 54.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the Internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
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).
On January 8, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 59. Petitioner requests attorneys’ fees in the amount of $22,632.50 and attorneys’
costs in the amount of $1,338.45. Id. at 1. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. at 2. Thus, the total amount requested is $23,970.95.
On February 8, 2019, respondent filed a response to petitioner’s motion. ECF
No. 60. 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. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
On February 8, 2019, petitioner filed a reply. ECF No. 61. Petitioner disputes
respondent’s position that he has no role in resolving attorneys’ fees and costs and
further reiterates his view that his attorneys’ fees and costs in this case are reasonable.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.§
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of
Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). 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 (Fed. Cir. 1993) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the special master may
reduce a fee request sua sponte, apart from objections raised by respondent and
without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not
engaged in a line-by-line analysis of petitioner’s fee application when reducing fees.
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
2
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
II. Attorney Fees
A. Hourly Rates
i. Franklin J. Caldwell
With regard to Mr. Caldwell’s requested hourly rate of $404 for work performed in
2019, the undersigned finds the proposed rate excessive based on his overall legal
experience, the quality of work performed, his experience in the Vaccine Program, and
his reputation in the legal community and the community at large. See McCulloch v.
Health and Human Services, No. 09–293V, 2015 WL 5634323 at *17 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a
reasonable forum hourly rate: experience in the Vaccine Program, overall legal
experience, the quality of work performed, and the reputation in the legal community
and community at large). The determination of the amount of reasonable attorneys'
fees is within the special master's discretion. See, e.g., Saxton v. HHS, 3 F.3d 1517,
1520 (Fed. Cir. 1993). Special masters have “wide latitude in determining the
reasonableness of both attorneys’ fees and costs.” Hines v. HHS, 22 Cl. Ct. 750, 753
(Fed. Cl. 1991). Moreover, special masters are entitled to rely on their own experience
and understanding of the issues raised. Wasson v. HHS, 24 Cl. Ct. 482, 483 (Fed. Cl.
1991), aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). Under the
Court’s Fee Schedule, an attorney in the range of 20-30 years of experience are entitled
to hourly rates between $378 - $448 for work performed in 2019. 3
Mr. Caldwell was awarded a rate of $385 per hour for work performed in 2018.
An increase for 2019, based on the Producer Price Index for the “Office of Lawyers”
(PPI-OL), provided by the Department of Labor Bureau of Labor Statistics, would result
in a rate of $400 per hour, which is a more appropriate rate given the undersigned’s
experience and analysis of the McCulloch factors as applied to Mr. Caldwell. Therefore,
the undersigned reduces the fee request by $3.60.
ii. Anne Toale
Petitioner requests the rates for attorney Anne Toale; $378 for work performed in
2017, $402 for work performed in 2018. These rates have been previously awarded to
Ms. Toale and are awarded herein. For 2019, petitioner is requesting an hourly rate of
$420 for work performed by Ms. Toale. The undersigned finds the rate increase
3 The Attorneys’ Fee Schedule for 2019 is available at http://www.uscfc.uscourts.gov/node/2914
3
reasonable given the undersigned’s experience and analysis of the McCulloch factors
as applied to Ms. Toale and awards the rate in full.
C. Excessive and Duplicative Billing
The undersigned has previously reduced the fees paid to petitioners due to
excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No.
10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee
award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health
& Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691
(2016). The undersigned and other special masters have previously noted the
inefficiency that results when cases are staffed by multiple individuals and have reduced
fees accordingly. See Sabella, 86 Fed. Cl. at 209.
Billing records show that 4 attorneys and 5 paralegals billed for work on this
case, with some billing less than one hour. This resulted in multiple reviews of the same
records, orders and updating the same entries on files. For example, the attorney’s and
the paralegals list 19 separate entries as reviewing court notifications of filings and
updating file entries and deadlines, for a total of 2.6 hours of time. 4 The undersigned
reduces the request for attorney’s fees by $161.00 5, the total of the duplicated entries at
the paralegal rates.
D. Administrative Time
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the
attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of
Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at
387). A total of 1.9 hours was billed by paralegals on tasks considered administrative
including, receiving documents, forwarding correspondence, reviewing, organizing and
4Examples these entries include; August 18, 2017 (0.10 hrs KAG) “Review and analyze Court order for
action needed, update case file”; August 22, 2017 (0.10 hrs ACT) “Review order”; April 9, 2018 (0.20 hrs
FJC) “Receipt and review of scheduling order; review file briefly for completeness” (0.10 hrs JDE)
“Review and process Scheduling Order from the court. Update case notes and deadlines”, November 9,
2018 (0.10 hrs MSP) “Review and analyze filed Proffer for action needed, update case file”, (0.20 hrs
FJC) “Receipt and review of filed Proffer and Decision on Entitlement”. ECF No 59-1 at 5, 11 and 15.
These entries are mealy examples and not an exhaustive list.
5 This amount consists of (0.60 hrs x $145 = $87) + (0.50 hrs x $148 = $74) = $161.00.
4
finalizing documents. The undersigned reduces the request for attorney fees by
$279.10 6, the total amount of entries considered administrative.
III. Attorney Costs
Petitioner requests reimbursement for attorney costs in the amount of $1,338.45.
After reviewing petitioner’s invoices, the undersigned finds no cause to reduce
petitioner’s’ request and awards the full amount of attorney costs sought.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $23,527.25 7 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Franklin J. Caldwell. Petitioner requests check be forwarded to Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.
The clerk of the court shall enter judgment in accordance herewith. 8
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
6
This amount consists of (0.70 hrs x $145 = $101.50) + (1.20 hrs x $148 = $177.60) = $279.10.
7This 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).
8 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.
5