Bowman-Harris v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 3, 2019
* * * * * * * * * * * * * *
LESA MARIE BOWMAN-HARRIS, * No. 17-1172V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
David W. Hittle, David W. Hittle, Salem, OR, for Petitioner.
Lisa A. Watts, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 30, 2017, Lesa Marie Bowman-Harris (“Petitioner”) filed a petition for
compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§
300aa-10 to 34 (2012). The petition alleged that the tetanus, diphtheria, and acellular pertussis
(“Tdap”) vaccine Petitioner received on July 6, 2015, caused her to suffer from loss of eyesight,
chronic headaches, and bilateral optic neuritis. On January 23, 2019, the parties filed a stipulation,
which the undersigned adopted as her decision awarding compensation on January 24, 2019. ECF
No. 29.
On June 11, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF No. 34
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims’ website. This
means the ruling 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $19,907.81
(representing $18,720.00 in fees and $1,187.81 in costs). Fees App. at 2.3 Pursuant to General
Order No. 9, Petitioner warrants that she has not personally incurred any costs. ECF No. 38.
Respondent responded to the motion on June 17, 2019, indicating that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the
undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and
costs.” Resp’t’s Resp. at 2–3 (ECF No. 36). Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. 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.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
3
In Petitioner’s motion, the amount of attorney’s costs requested was listed as $1,006.30. On September
10, 2019, Petitioner filed notice that the correct amount of attorney’s costs was $1,187.81 and that Petitioner
did not personally incur any costs. ECF No. 38.
2
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
a. Hourly Rates
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.4
Petitioner requests that her attorney, Mr. David Hittle, be compensated at $400.00 per hour
for all work performed (the billing records indicate work performed in 2016-2019). Mr. Hittle has
been barred since 1974, giving him 45 years of experience as of 2019 and placing him within the
highest range on the OSM Attorneys’ Fee Schedule at all times in this case. Upon review of his
credentials, the undersigned finds the requested rate for his work to be reasonable.
The billing records also reflect that a small amount of work was performed by Ms. Vicki
Miley, who is the legal secretary to Mr. Hittle. An affidavit submitted by Mr. Hittle notes that
“[o]n the occasional case where I bill by the hour, I do not charge separately for work performed
by my legal secretary.” Fees App. Ex. 2 at 3. The practical effect is that, although work performed
by Ms. Miley is delineated separately from work performed by Mr. Hittle, the work performed by
Ms. Miley has been billed at Mr. Hittle’s hourly rate. The undersigned finds this to be excessive.
Upon review, Ms. Miley performed work typical to what a paralegal would normally perform in
Vaccine Program cases, such as sending requests for medical records and filing documents. Fees
App. Ex. 1 at 7-8. The undersigned will therefore compensate these tasks at a paralegal rate of
$130.00 per hour. This results in a reduction to fees of $486.00.5
b. Hours Expended
4
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
5
($400.00 per hour billed - $130.00 per hour awarded) * 1.8 hours billed - $486.00.
3
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, 3 F.3d at 1521.
Upon review, the undersigned finds the billed hours to be reasonable. Counsel has provided
sufficiently detailed descriptions for the tasks performed, and upon review the undersigned does
not find any of the billing entries to be unreasonable. Respondent has also not indicated that he
finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final
attorneys’ fees in the amount of $18,234.00.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $1,187.81 in attorneys’ costs. This amount is comprised of acquiring medical records
and the Court’s filing fee. ECF No. 37. Petitioner has provided adequate documentation to support
these costs and in the undersigned’s experience they are reasonable. Accordingly, Petitioner is
entitled to the full amount of costs sought.
II. Conclusion
Based on all the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested $18,720.00
(Reduction to Fees) - ($486.00)
Total Attorneys’ Fees Awarded $18,234.00
Attorneys’ Costs Requested $1,187.81
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $1,187.81
Total Attorneys’ Fees and Costs $19,421.81
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Accordingly, the undersigned awards the following:
1) A lump sum in the amount of $19,421.81, representing reimbursement for Petitioner’s
attorneys’ fees and costs, in the form of a check payable to Petitioner and her
attorney, Mr. David Hittle.
4
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.6
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
6
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
5