Barrow v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 11, 2022
* * * * * * * * * * * * * * UNPUBLISHED
JASON BARROW, * No. 20-915V
* Special Master Horner
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Traci R. Patton, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On July 29, 2020, Jason Barrow (“petitioner”), filed a claim under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012).2 Petitioner alleged he from Guillain-Barré
syndrome following his receipt of a tetanus-diphtheria-acellular pertussis vaccination on June 11,
2019. (ECF No. 1). On August 24, 2021, the parties filed a stipulation, which I adopted as my
decision awarding compensation on the same day. (ECF No. 30).
On February 2, 2022, petitioner filed an application for attorneys’ fees and costs. (ECF No.
36) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $31,349.59,
representing $30,031.60 in attorneys’ fees and $1,317.99 in costs. Fees App. at 1. Pursuant to
General Order No. 9, petitioner certifies that he has not incurred any fees or costs related to the
prosecution of his petition. Id. Respondent responded to the motion on February 2, 2022, indicating
1
I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling
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. Because this unpublished ruling
contains a reasoned explanation for 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. § 3501note (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).
that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case.” Resp. at 2 (ECF No. 37). Petitioner filed a reply on February 3, 2022,
reiterating his belief that the requested attorneys’ fees and costs are reasonable. (ECF No. 38).
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
a. Hourly Rates
2
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3
Petitioner requests the following hourly rates for the work of his counsel: for Ms. Leah
Durant, $380.00 per hour for work performed in 2019, $395.00 per hour for work performed in
2020, $420.00 per hour for work performed in 2021, and $441.00 per hour for work performed in
2022; and for Ms. Lindsay Bainbridge, $266.00 per hour for work performed in 2021. These rates
are consistent with what counsel has previously been awarded for their Vaccine Program work,
and I find them to be reasonable for work performed in the instant case.
b. Hours Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review, of the submitted billing statement, I find that the overall hours spent on this
matter appear to be largely reasonable. However, there is a general issue of vagueness in the
description of many of the billing entries, particularly those for communication with petitioner. As
the Federal Circuit has previously ruled, disclosure of the general subject matter of billing
statements does not violate attorney-client privilege and billing entries for communication should
contain some indication as to the nature and purpose of the communication. See Avgoustis v.
Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011). In the instant case, several billing entries
concerning communication do not contain any indication of the topic of that communication, (e.g.,
multiple entries billed for 0.4 hours for “client call”) making it difficult for the undersigned to
determine whether such communication was necessary and reasonable. Other communication
entries contain slightly more information but still are still vague overall (e.g., “Client call. Provide
litigation update” or “Client call. Respond to questions.”). All those descriptions provide is an
indication that case work was the subject to the communication, which should be a given. Entries
describing with greater specificity the topic of discussion would make it easier for the undersigned
to assess whether the amount of time spent on the topic of the communication was reasonable and
necessary. Taken as a whole, the undersigned finds that the amount of communication with
petitioner appears slightly excessive and insufficiently documented.
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
3
Accordingly, the undersigned shall reduce the final award of attorneys’ fees by two percent,
resulting in a reduction of $600.63. Petitioner is therefore awarded final attorneys’ fees of
$29,430.97.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $1,317.99 in attorneys’ costs. This amount is comprised of acquiring medical records,
the Court’s filing fee, and postage. Fees App. Ex. 2 at 2. Petitioner has provided adequate
documentation of the requested costs and they appear to be reasonable in my experience. Petitioner
is therefore awarded the full amount of costs sought.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs is
reasonable. I find it reasonable to compensate petitioner and his counsel as follows: a lump sum
in the amount of $30,748.96, representing reimbursement for petitioner’s attorneys’ fees and
costs, in the form of a check payable to petitioner and petitioner’s counsel, Ms. Leah Durant.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
4