Taylor v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0798V
Filed: August 13, 2019
UNPUBLISHED
LISA TAYLOR,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Bobbie L. Flynt, CPW LAW, LLC, Chargrin Falls, OH, for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On June 6, 2018, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of her June 7, 2017 tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccination. Petition at 1. On May 22, 2019, the undersigned issued
a decision awarding compensation to petitioner based on the respondent’s proffer. ECF
No. 29.
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 Because this unpublished decision contains a reasoned explanation for the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, the 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 June 3, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No.
34. Petitioner requests attorneys’ fees in the amount of $26,761.50 and attorneys’
costs in the amount of $965.63. Id. at 1. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. ECF No. 33. Thus, the total amount requested is $27,727.13.
On June 17, 2019, respondent filed a response to petitioner’s motion. ECF No.
35. Respondent states that “[n]either the Vaccine Act nor Vaccine Rule 13 requires
respondent to file a response to 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.
Petitioner filed no reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of requested fees to be 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. 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. Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage 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
“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.
2
II. Attorney Fees
A. Hourly Rates
Petitioner requests compensation for attorney Bobbie Flynt at the rate of $400
per hour for all time billed in this case. ECF No. 34-1 at 1. Ms. Flynt billed for time
spent on tasks in 2018 and 2019. Ms. Flynt’s states in her affidavit she became a
licensed attorney in the state of Ohio in 1996, which places her in the range of
attorneys’ with 20 – 30 years’ experience during this case. Id. at 1. Ms. Flynt was
previously awarded the rate of $370 per hour by the undersigned for work performed in
2018. Schaffer v. Sec’y of Health & Human Servs., No. 17-1295, 2018 WL 5276602,
(Fed. Cl. Spec. Mstr. September 5, 2018).
While the requested rates for 2018 and 2019 are within the appropriate
experience range on the Court’s Attorneys’ Hourly Rate Fee Schedule, the rates are at
the high end of the spectrum given her limited experience in the Vaccine Program and
her overall legal experience.3 McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 5634323 at *17 (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).4 As such, the undersigned reduces Ms. Flynt’s hourly rate to
$370 per hour for 2018 consistent with the undersigned’ reasoning and award in
Schaffer, and $385 per hour for 2019.
This results in a reduction of attorney’s fees requested in the amount of
$1,527.00.5
B. Travel Time
In the Vaccine Program, special masters traditionally have compensated for time
spent traveling when no other work was being performed at one-half an attorney’s
hourly rate. Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL
3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health &
Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27,
2009); English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at
*12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use
3
In the affidavit filed with Motion for Attorney’s Fees, Ms. Flynt states that she began working on vaccine
cases in 2016 and this is the “second vaccine case [she] has taken to settlement.” ECF No. 34-1 at 1.
4
Attorney hourly rates are set forth in the OSM Attorneys’ Forum Hourly Rate Schedules for 2019 and are
available on the U.S. Court of Federal Claims website at
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%
202019.pdf
5This amount consists of ($400 - $370 = $30 x 39.9 hrs = $1,197) + ($400 - $385 = $15 x 22 hrs = $330)
= $1,527.00.
3
this rule as standard practice but rather “[e]ach case should be assessed on its own
merits.” Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). “Even
an automatic 50% award may be too high for an undocumented claim, given the
possibility that an attorney may use the travel time to work on another matter or not to
work at all while traveling.” Id.Ms. Flynt’s’ billing records show two entries, billed for three hours each, as
“Travel to and from Sandusky, OH for meeting with client.” ECF No. 34-2 at 1 -2.
Based on the undersigned’s review and assessment of petitioner’s billing records,
petitioner will be awarded fees for travel at a reduction of 50 percent for each entry. This
results in a reduction of fees requested in the amount of $1,110.00.6
C. Administrative Time
Upon review of the billing records submitted, it appears that several 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).
These entries describe time spent sending requests for petitioner’s medical records.
While preparing records requests are valid billable tasks, the act of sending the
requests is administrative. The billing entries in question do not state that the requests
were prepared, just that the requests were sent. The undersigned reduces the request
for attorney fees by $367.20,7 the total amount of time billed for the tasks considered
administrative in nature.
III. Attorney Costs
Petitioner requests reimbursement for attorney costs incurred by counsel in the
amount of $965.63. After reviewing petitioner’s invoices, the undersigned finds no
cause to reduce petitioner’s’ request and awards the full amount of attorney costs and
petitioner’s 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.
6 This amount consists of $370 x 6 hrs = $2,220.00 x .50 = $1,110.00.
7 This amount consists of $153 x 2.4 hrs = $367.20.
4
Accordingly, the undersigned awards the total of $24,722.938 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Bobbie L. Flynt.
The clerk of the court shall enter judgment in accordance herewith. 9
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
8This 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).
9 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