Decker v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
RAYMOND DECKER, *
* No. 16-1104V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 13, 2018
*
SECRETARY OF HEALTH * Attorneys’ fees and costs
AND HUMAN SERVICES, *
*
*
Respondent. *
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Franklin J. Caldwell, Jr., Maglio, Christopher & Toale, Sarasota, FL, for Petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Raymond Decker prevailed in his claim brought in the National Childhood
Vaccine Compensation Program. He is now seeking an award for attorneys’ fees
and costs. He is awarded $21,669.85.
* * *
Represented by attorney F. John Caldwell, Mr. Decker filed his petition on
September 2, 2016, alleging that the influenza vaccine caused him to suffer
transverse myelitis. After discussions, the parties resolved this case. The parties
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
submitted a stipulation that a decision incorporated. Decision, 2018 WL 1835155(Mar. 7, 2018).
On July 5, 2018, Mr. Decker filed a motion for an award of attorneys’ fees
and costs. The motion seeks a total of $22,169.85, comprised of $20,147.50 in
attorneys’ fees and $2,022.35 in attorneys’ costs. Mr. Decker did not incur any
costs personally. Exhibit 22 (Gen. Order No. 9 Stat.).
The Secretary filed a response to Mr. Decker’s motion. The Secretary
represented that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Resp’t’s Resp., filed July 19, 2018,
at 2. With respect to amount, the Secretary recommended that “the special master
exercise his discretion” when determining a reasonable award for attorneys’ fees
and costs. Id. at 3.
Mr. Decker filed a reply on July 25, 2018, requesting that he be awarded the
fees and costs as requested originally. With the reply, Mr. Decker cited several
cases in support of the proposed hourly rates. These citations are helpful, but the
better course would be to include support for the proposed hourly rates in the
initial motion.
This matter is now ripe for adjudication.
* * *
Because Mr. Decker received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the
unresolved question is what is a reasonable amount of attorneys’ fees and costs?
I. Attorneys’ Fees
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
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required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
A. Reasonable Hourly Rate
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Mr. Decker requests compensation for Attorney Caldwell, as well as
paralegals who assisted him. Some of the proposed rates are reasonable as
reflected in the prior decisions involving the Maglio firm and its attorneys. Perez
v. Sec'y of Health & Human Servs., No. 10-659V, 2016 WL 8077957 (Fed. Cl.
Spec. Mstr. Dec. 30, 2016). But one is not.
For work Mr. Caldwell performed in 2018, Mr. Decker requests
compensation at a rate of $391 per hour. However, in decisions issued before Mr.
Decker filed his pending motion in this case, special masters rejected that rate for
Mr. Caldwell. Paul v. Secʼy of Health & Human Servs., No. 16-468V, 2018 WL
4611404, at *2 (Fed. Cl. Spec. Mstr. June 22, 2018) (awarding $385 per hour);
Witte v. Secʼy of Health & Human Servs., No. 12-462V, 2018 WL 3082963 (Fed.
Cl. Spec. Mstr. May 22, 2018) (awarding $375 per hour).
Given that Mr. Caldwell spent approximately two hours of work in 2018,
whether Mr. Caldwell is compensated at a rate of $391, $385, or $375 per hour, the
result will be within $100 dollars. Yet, it is concerning that after special masters
have not accepted Mr. Caldwell’s attempts to raise his hourly rate for 2018, Mr.
Caldwell has persisted in his request. Mr. Decker’s reply, which cites some
favorable decisions for hourly rates in other years, does not cite, let alone
distinguish, Paul or Witte. This apparent lapse in judgment is not consistent with
Mr. Caldwell’s usually strong performance as an advocate. Excessive billing is not
consistent with superior quality legal work. Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 566-67 (1986). Thus, Mr. Caldwell
is warned that future submissions that request an unsupported hourly rate may
result in a penalty. See Valdes v. Sec'y of Health & Human Servs., No. 99–310V,
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2009 WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (warning attorney
that penalties may be necessary to motivate him to submit requests for fees that do
not contain “erroneous, duplicative, or unreasonable entries”), mot. for rev. granted
in non-relevant part and denied in non-relevant part, 89 Fed. Cl. 415 (2009).
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Sec’y of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
Nearly all of the activities are reasonable. Paralegals performed tasks that
are clerical in nature, such as filing documents, mailing compact discs, and
calendaring. These are not compensable. Missouri v. Jenkins, 491 U.S. 274, 288
n.10 (1989); Bennett v. Dep’t of Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983);
Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 407-08 (1997); Guerrero
v Secʼy of Health & Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed.
Cl. Spec. Mstr. May 22, 2015) (citing cases), mot. for rev. den’d in relevant part
and granted in non-relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No.
2016-1753 (Fed. Cir. Apr. 22, 2016).
To account for Mr. Caldwell’s 2018 hourly rate and the paralegal billings,
$500 is removed from the attorneys’ fees request.
II. Costs
In addition to seeking an award for attorneys’ fees, Mr. Decker seeks
compensation for costs expended, totaling $2,022.35. These costs are for routine
items, such as medical records and the filing fee. They are reasonable and
adequately documented. Mr. Decker is awarded them in full.
* * *
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§15(e). The undersigned finds $21,669.85 ($19,647.50 in attorneys’ fees and
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$2,022.35 in attorneys’ costs) to be a reasonable amount for all attorneys’ fees and
costs incurred. The undersigned GRANTS the petitioner’s motion and awards
$21,669.85 in attorneys’ fees and costs. This shall be paid as follows:
A lump sum of $21,669.85 in the form of a check made payable to
petitioner and petitioner’s attorney, F. John Caldwell, for attorneys’ fees and
costs available under 42 U.S.C. § 300aa-15(e).
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
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.
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