Williams v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-519V
(not to be published)
JEANETTE WILLIAMS,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 26, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Leigh Finfer, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Catherine E. Stolar, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 28, 2020, Jeanette Williams 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 the adverse effects of an influenza vaccination she received
on February 2, 2018. (Petition at 1). On March 8, 2022, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 32).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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. § 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 references 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 July 7, 2022
(ECF No. 37), requesting a total award of $11,653.31 (representing $11,096.80 in fees
and $556.51 in costs). In accordance with General Order No. 9, counsel for Petitioner
represents that Petitioner incurred no out-of-pocket expenses. (Id. at 2). Respondent
reacted to the motion on July 8, 2022, indicating that he is satisfied that the statutory
requirements for an award of attorney’s fees and costs are met in this case, but deferring
resolution of the amount to be awarded to my discretion. (ECF No. 38). Petitioner did not
file a reply thereafter.
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 the following rates for attorney Leigh Finfer and the attorneys
of Muller Brazil as follows:
2018 2019 2020 2021 2022
Leigh Finfer X X $200 $225 $250
Paul Brazil $317 $325 $350 X X
Laura Levenberg X X X X $350
The rates requested for Mrs. Finfer and Mr. Brazil are reasonable, and consistent
with what has previously been awarded and shall therefore be awarded herein. Ms.
Levenberg, however, was previously awarded the rate of $275 per hour for time billed in
2022, less than what is being requested herein. See Winkle v. Sec’y of Health & Human
Servs., No. 20-0485V. Accordingly, I reduce Ms. Levenberg’s rate to $275 per hour for
her time billed in 2022, as this is the rate that has been previously awarded. This results
in a reduction of $52.50. 3
ATTORNEY COSTS
Petitioner requests $518.23 in overall costs. (ECF No. 31 at 2). This amount is
comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable and shall award them
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 $11,600.81 (representing $11,044.30 in fees and $556.51 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. 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 ($350 - $275 = $75 x 0.70 hrs = $52.50).
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing 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