Huddy v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1442V
Filed: October 10, 2018
UNPUBLISHED
DONNA HUDDY,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Amber Diane Wilson, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On November 2, 2016, 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”) following an influenza (“flu”) vaccine administered on
September 23, 2015. Petition at 1. On August 23, 2018, the undersigned issued a
decision awarding compensation to petitioner based on the respondent’s proffer. (ECF
No. 55).
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 Because this unpublished decision contains a reasoned explanation for the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 October 1, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 60). Petitioner requests attorneys’ fees in the amount of $25,837.90 and attorneys’
costs in the amount of $832.73. 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 $26,670.63.
On October 2, 2018, respondent filed a response to petitioner’s motion. (ECF
No. 61). 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 October 3, 2018, petitioner filed a reply. (ECF No. 62). 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 it necessary to reduce the following hours billed for the reasons listed
below.
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 4.6 hours3 was billed by paralegals on tasks considered administrative
including, receiving documents, forwarding correspondence, reviewing and organizing
the client file, and mailing documents. For these reasons the undersigned will reduce
the request for attorney fees in the amount of $676.10.4
3 Examples of these entries include: December 4, 2015 (0.10 hrs) “Review case documentation and
update file”, April 22, 2016 (0.10 hrs) “Process correspondence for records from Elite Ortho”, May 13,
2016 (0.10 hrs) “Forward correspondence for medical records from UMCMG.”, October17, 2016 (0.10hrs)
“Send out correspondence for processing records from ATI Physical Therapy”, and November 2, 2016
(0.10hrs) “Receive notice of filed petition; coordinate sending courtesy copy to HHS”. These entries are
merely examples and are not exhaustive
4This amount consists of 0.6 hrs at $135 per hour, 3.2 hrs at $145 per hour, 0.7 hrs at $148 per hour and
0.1 hrs at $275 per hour.
2
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). 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 $25,994.535 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Amber Diane Wilson. 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.6
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5This 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).
6 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.
3