Garone v. Secretary of Health and Human Services

CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0964V
Filed: September 30, 2019
UNPUBLISHED
DOROTHY GARONE,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Clarke Newton, Bluestein Thompson Sullivan, LLC, Columbia, SC, for petitioner.
Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On July 5, 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 received a Prevnar-13 vaccination on October 30,
2017, and subsequently suffered right rotator cuff syndrome/bursitis. Petition at 1. On
July 30, 2019, the undersigned issued a decision awarding compensation to petitioner
based on the respondent’s proffer. ECF No. 34.
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 Because this unpublished decision contains a reasoned explanation for the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 August 14, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 38. Petitioner requests attorneys’ fees in the amount of $20,391.00 and attorneys’
costs in the amount of $1,561.17. 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. 38-2. Thus, the total amount requested is $21,952.17.
On August 14, 2019, respondent filed a response to petitioner’s motion. ECF No.
39. Respondent argues 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.
By email correspondence on August 14, 2019, counsel for petitioner, copying
council for respondent, notified the staff attorney managing the case that petitioner did
not intend to file a reply.
The undersigned has reviewed the billing records submitted with petitioner’s
requests 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
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,
2
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
Petitioner requests compensation for attorney John Clarke Newton at the rate of
$340 per hour time for all time billed in this case. ECF No. 41 at 2. The requested rate
exceeds Mr. Newton’s appropriate experience range based on the Court’s Attorneys’
Hourly Rate Fee Schedule.3 McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. September 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).4 Mr. Newton’s affidavit
states he became a licensed attorney in 2009, placing him in the range of attorney’s
with 8-10 years’ experience. ECF No. 41-2 at 1. Due to Mr. Newton’s inexperience in
the Vaccine Program, the undersigned finds cause to reduce the requested hourly rate
commensurate with his experience as a licensed attorney. As such, Newton’s rate will
be reduced to the following: $281 for work performed in 2017, and $215 for work
performed in 2019. This results in a reduction of attorney’s fees requested in the
amount of $1,579.20.5
Petitioner requests the hourly rate of $142 for time billed by the paralegal and the
rate of $132 for all time billed by the legal assistant. The undersigned finds these
requested rates reasonable and awards them herein.
B. 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 v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL
720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016 (citing Rochester, 18 Cl. Ct. at 387). A
3
This is Mr. Newton’s first case in the Vaccine Program.
4
OSM Attorneys’ Forum Hourly Rate Schedules for 2019 and are available at
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%
202019.pdf
5This amount consists of ($340 - $281 = $59 x 2.8 hrs = $165.20) + ($340 - $300 = $40 x 21.7 hrs =
$868.00) + ($340 - $320 = $20 x 27.3 = $546.00) = $1,579.20.
3
total of 5.8 hours was billed on tasks considered administrative including, receiving,
printing and saving documents, faxing, and mailing correspondence. Examples of these
entries include:
• July 5, 2081 (0.30 hrs) Paralegal prepared/mailed petition/exhibits to
Respondent
• October 22, 2018 (0.20 hrs) “paralegal prepared filing to be mailed”
• March 5, 2019 (0.10 hrs) “paralegal processed/printed/saved e-filing”
• June 28, 2019 (0.30 hrs) “paralegal printed and mailed med rec to FCE
facility”
• July 18, 2019 (0.10 hrs) “paralegal processed mail received”
ECF No. 38-3 at 3-7.6
The undersigned reduces the request for attorney fees by $816.60, the total of
the tasks considered administrative.
C. Vague Entries
The billing records reflect that Mr. Newton has multiple entries that are vague,
and the significance of the tasks performed is not apparent. The undersigned has
previously decreased awards of attorneys’ fees for vagueness. Mostovoy, 2016 WL
720969 at *5; Barry v. Sec’y of Health and Human Servs., No. 12-39V, 2016 WL
6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reduced a fee award by 10 percent due
to vague billing entries). An application for fees and costs must sufficiently detail and
explain the time billed so that a special master may determine, from the application and
the case file, whether the amount requested is reasonable. Bell v. Sec’y of Health &
Human Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez v. Sec’y of Health & Human
Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. June 27, 2009).
Examples of these include:
• July 11, 2018 (0.30 hrs) “JCN emailed w/ Heather Pearlman”
• July 26, 2018 (0.10 hrs) “JCN email w/ Mary Holmes”
• August 20, 2018 (0.10 hrs) “JCN emailed court”
• October 19, 2018 (0.10 hrs) “JCN emails with Colleen Hartley and Court”
• February 11, 2019 (0.50 hrs) “JCN emails with client”
• June 25, 2019 (1.00 hrs) “JCN emails with client”
• July 29, 2019 (0.10 hrs) “JCN emails with paralegal”
ECF No. 38-3 at 2-7.7
6 These are examples and not an exhaustive list.
7 These are examples and not an exhaustive list.
4
The undersigned reduces the amount of time for all the entries considered vague
by 20 percent. This results in a total reduction of attorneys’ fees in the amount of
$1,391.76.8
III. Attorney Costs
Petitioner requests reimbursement for attorney costs in the amount of $1,561.17.
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 $18,164.619 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
John Clarke Newton.
The clerk of the court shall enter judgment in accordance herewith.10
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
8This amount consists of (0.8 hrs x $281 = $224.80) + (13.7 hrs x $300 hr = $4,110.00) + (8.2 hrs x $320
= $2,624) = $6,958.80 x 0.20 = $1,391.76. These amounts are calculated using the already reduced
hourly rates.
9This 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).
10Pursuant 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