Bowen v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0238V
Filed: November 9, 2018
UNPUBLISHED
SONYA BOWEN,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Joseph Alexander Vuckovich, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On February 21, 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 She suffered a shoulder injury related to vaccine
administration (“SIRVA”) resulting from an influenza (“flu”) vaccination. Petition at 1-3.
On March 26, 2018, the undersigned issued a decision awarding compensation to
petitioner based on the parties’ stipulation. ECF No. 39.
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 Because this unpublished decision contains a reasoned explanation for the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 July 18, 2018, petitioner filed a motion for attorneys’ fees and costs. ECF No.
44. Petitioner requests attorneys’ fees in the amount of $29,239.20 and attorneys’
costs in the amount of $1,329.05. Id. at 1-2. 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 $30,568.25.
On July 18, 2018, respondent filed a response to petitioner’s motion. ECF No.
45. 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 July 18, 2018, petitioner filed a reply. ECF No. 46. 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. Attorneys’ Fees
A. Joseph Vuckovich
Petitioner requests compensation for Joseph A. Vuckovich at a rate of $305 for
2016, $313.00 for 2017 and $323.00 for 2018. ECF No. 34-2 at 11. The undersigned
finds it necessary to reduce the requested rates due to Mr. Vuckovich’s limited
experience in the Vaccine Program. Considering Mr. Vuckovich’s skill, experience,
quality of work, reputation and the undersigned’s experience evaluating fee applications
in Vaccine Act cases, the undersigned finds that the following rates are appropriate for
Mr. Vuckovich: rates of $275 for work performed in 2016, $290 for work performed in
2017 and $300 for work performed in 2018.3 This results in a reduction of fees
requested in the amount of $1,873.10.4
B. Danielle Strait
Attorney Danielle Strait billed 0.40 hours in 2016 at a rate of $306 per hour. ECF
No. 44-1 at 24. The undersigned shall reduce Ms. Strait’s hourly rate to the previously
awarded rate of $300 for 2016. See Schultheis v. Sec’y of Health & Human Servs., No.
13-0781V, 2017 U.S. Claims LEXIS 759, at *5 (Fed. Cl. Spec. Mstr. June 5, 2017)
(setting Ms. Strait’s rate for 2016). This results in a reduction of fees in the amount of
$2.40.
C. Administrative Time
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. It is clearly established that
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
3
The undersigned addressed Mr. Vuckovich’s rates for work performed from 2016 – 2018 and found the
awarded rates were appropriate. Shawgo v. Sec’y of Health & Human Servs., No. 17-0306 at *7 (Fed. Cl.
Spec. Mstr. Oct. 10, 2018).
4This amount consist of ($305 - $275 x 27.40 hrs = $822) + ($313 - $290 x 22.7 = $522.10) + ($323 -
$300 x 23 hrs = $529) = $1,873.10.
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387). A total of 5.3 hours5 was billed by Mr. Vuckovich and the paralegals on tasks
considered administrative including, opening and setting up client files, organizing client
file, updating notes and sending correspondence. For these reasons the request for
attorney’s fees will be reduced in the amount of $851.20.6
III. Attorneys’ Costs
Petitioner requests reimbursement for costs incurred from Maglio Christopher &
Toale in the amount of $1,329.05. ECF No. 44 at 2. After reviewing petitioner’s
invoices, the undersigned finds no cause to reduce petitioner’s’ request and awards the
full amount of attorney costs sought.
Based on the reasonableness of petitioner’s request and the lack of opposition
from respondent, the undersigned GRANTS IN PART petitioner’s motion for attorneys’
fees in the reduced amounts and costs.
Accordingly, the undersigned awards the total of $27,841.557 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Joseph A. Vuckovich. 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
5 Examples of these entries include: January 7, 2016 (0.5 hrs) “Prepare retainer packet for attorney
review”, June 16, 2017 (0.2 hrs) “Review client file and make necessary update to notes”, September 19,
2017 (0.10 hrs) “Review travel documentation and add to client file”, March 26, 2018 (0.10hrs) “Review
correspondence received regarding stipulation delivery. Update file accordingly.” and June 1, 2018 (0.30
hrs) “Review and organize case documents.” ECF No. 44-1 at 1, 8, 11, and 18. These entries are merely
example and are not exhaustive.
6 This amount consists of 1.8 hours at $105 per hour, 0.1 hours at $135 per hour, 1.5 hours at $145 per
hour, 0.9 hours at $148 per hour, 0.2 hours at the already reduced rate of $290 per hour and 0.8 hours at
the already reduced rate of $300 per hour.
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.
4