Thoma v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1848V
(not to be published)
MARK THOMA,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 31, 2022
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs; Hourly
Rates
Respondent.
Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On December 6, 2019, Mark Thoma 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 he suffered brachial neuritis as a result of an
influenza vaccine received on January 17, 2017. (Petition at 1, 3, 5). On July 14, 2022, a
decision was issued awarding compensation to Petitioner based on the parties’
stipulation. (ECF No.43).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 filed a motion for attorney’s fees and costs, dated July 17, 2022 (ECF
No. 46), requesting a total award of $27,781.79 (representing $27,117.50 in fees and
$664.29 in costs)3. Respondent reacted to the motion on July 18, 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 at the Court’s
discretion. (ECF No. 47).
On July 26, 2022, Petitioner filed a motion to strike his fees motions, representing
that he had “inadvertently omitted the supporting cost documentation in his final invoice
for Van Cott & Talamante’s attorneys’ fees and costs.” (ECF No. 48). He thereafter refiled
the motion, requesting the same amounts as before. (ECF No. 49). In accordance with
General Order No. 9, counsel for Petitioner also represented that Petitioner incurred no
out-of-pocket expenses. (Id. at 7). Respondent did not file a response to the reinitiated
motion.
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.
3Petitioner’s motion for attorney’s fees and costs requests that a total of $30,315.64 in fees and costs be
awarded. (ECF No. 49 at 7). However, the detailed billing records reflect a total of $27,781.79.
2
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.
ATTORNEY FEES
Petitioner requests compensation for attorney Andrew D. Downing at the rates of
$385 per hour for time billed in 2018-21 and the rate of $415 for 2022. (ECF No. 43 at 1).
Additionally, Petitioner request the following rates for Courtney Jorgenson: 4 $205 per
hour for 2019, $275 per hour for 2020-21, and $345 per hour for 2022. (Id). Mr. Downing
and Ms. Jorgenson have previously been awarded these rates for the 2018-21 period.
Regarding the requested rates for 2022, however, although Mr. Downing was previously
awarded the rate of $415 per hour, Ms. Jorgenson’s time was compensated at the lesser
rate of $325 per hour. See Einweck v. Sec’y of Health & Human Servs., No. 20-559, 2022
WL 3011016 (Fed. Clms. Spec. Mstr. June 24, 2022).
I agree with the reasoning from these prior cases and award them herein. But
because it does not appear that either attorney billed any time to the matter in 2022, my
rate adjustment determination for Ms. Jorgenson does not result in any attorney time
adjustment to the total award.
ATTORNEY COSTS
Petitioner requests $664.29 in overall costs. (ECF No. 49-1 at 26). This amount is
comprised of obtaining medical records, postage and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable, and shall therefore
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 $27,781.79 (representing $27,117.50 in fees and $664.29 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. 5
4 This is the married name for attorney Van Cott.
5 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