Lange v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1287V
(not to be published)
HALIE LANGE,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 29, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Brittany S. Cates, Faxon Law Group, Philadelphia, PA, for Petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 27, 2019, Halie Lange 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 resulting from adverse effects of an influenza vaccination she received on
January 29, 2018. (Petition at 1). On July 26, 2021, a decision was issued awarding
compensation to Petitioner based on Respondent’s proffer. (ECF No. 34).
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated August 25,
2021 (ECF No. 31), requesting a total award of $13,916.00 (representing $13,485.00 in
fees and $431.00 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 34-
5). Respondent has not filed anything in response.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate, for the reason listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
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. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
Petitioner’s counsel “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.
2
ATTORNEY FEES
Petitioner requests compensation for attorney Brittany Cates at the rate of $300
per hour for all time billed between 2018 – 2021, and for attorney Joel Faxon at the rate
of $600 per hour for work performed in 2018 and 2019. (ECF No. 34-2 at 2-7). Petitioner
also requests the paralegal rate of $150 per hour for all time billed. (Id.). These rates
require adjustment.
Ms. Cates’s time has in prior cases been compensated at the same rate as that
requested herein, and I find no reason to deviate from it. Mr. Faxon, however, previously
has been awarded the lesser rate of $395 per hour for time billed in 2018. See Drechsler
v. Sec’y of Health & Human Servs., No. 16-1123V, 2018 WL 6538245 (Fed. Cl. Spec.
Mstr. Oct. 31, 2018). I agree with the reasoning of the previous special master for adopting
this rate, and therefore similarly reduce Mr. Faxon’s rate for work performed in 2018. For
the year 2019, I find the rate of $415 per hour to be reasonable and award it herein.
Application of these reduced rates results in a reduction of fees to be awarded by
$858.50. 3
ATTORNEY COSTS
Petitioner requests $431.00 in overall costs. (ECF No. 34). This amount is
comprised of obtaining medical records and the Court’s filing fee. I have reviewed all of
the requested costs and find them to be reasonable and shall award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $13,057.50 (representing $12,626.50 in fees and $431.00 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and the Faxon Law Group.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 4
3
This amount consists of ($600 - $395 = $205 x 1.3 hrs = $266.50) + ($600 - $415 = $185 x 3.2 hrs = $592)
= $858.50.
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4