Toale v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
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JOSEPHINE PLOTKIN, *
* No. 16-1249V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Filed: October 3, 2016
AND HUMAN SERVICES, *
*
Respondent. *
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ORDER REGARDING ATTORNEYS’ FEES AND COSTS
Vaccine Rule 13 and Section X of the Guidelines address aspects of applications for
attorneys’ fees and costs. The parties should be familiar with those provisions.
The attorney representing the petitioner(s) should be aware that now, the Secretary does
not routinely agree not to object to particular requests for attorneys’ fees. Thus, contrary to
Guidelines, Section X, Chapter 4, the Secretary is unlikely to consent to the filing of a stipulation
regarding attorneys’ fees.
The Secretary’s lack of participation complicates the process of awarding attorneys’ fees
and costs in at least two respects. First, without stipulations, the queue of cases awaiting
adjudication of attorneys’ fees and costs is lengthening. Although the undersigned is aware of an
attorney’s interest in receiving an award of attorneys’ fees and costs promptly, many attorneys
are seeking awards in other cases, too. In addition, the merits of a petitioner’s claim that a
vaccine harmed him or her are pending in numerous cases.
Second, without participation from the Secretary, the undersigned must review every
application for attorneys’ fees and costs. The undersigned believes that Federal Circuit
precedent defines the process for awarding attorneys’ fees even when the Secretary has not
identified any deviations from the approved process.
In the undersigned’s experience, the most signature point of departure from Federal
Circuit precedent comes in the context of an attorneys’ hourly rate. To minimize disputes over
reasonable hourly rates, the following guidance is provided:
Reasonable Hourly Rates
The process for determining a reasonable hourly rate for an attorney in the Vaccine
Program contains three steps, set forth in Avera v. Sec’y of Health & Human Servs., 515 F.3d
1343, 1348-50 (Fed. Cir. 2008).
First, the special master is obligated to find a reasonable hourly rate in the locale where
the attorney practices (say, St. Louis, Missouri). A reasonable local hourly rate is based upon the
rates charged by similar attorneys performing similar work. Blum v. Stenson, 465 U.S. 886, n.11
(1984). The legal work in the Vaccine Program is not particularly complex. Masias v. Sec’y of
Health & Human Servs., 634 F.3d 1283, 1288-90 (Fed. Cir. 2011). The petitioner should submit
some evidence supporting a proposed hourly rate. For a list of ways to establish a reasonable
local hourly rate, see Guidelines, Section X, Chapter 3.B.1.c.
Second, the special master is obligated to find a reasonable hourly rate for the forum,
which is Washington, D.C. The need to consider the forum rate is part of the structure
established by binding precedent. Avera, 515 F.3d at 1348.
In 2015, a law firm, which represents numerous petitioners in the Vaccine Program,
submitted evidence regarding the forum rate. The extensive litigation led to a lengthy decision
finding reasonable forum rates for attorneys with different levels of experience. McCulloch v.
Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). As a decision of another special master, McCulloch does not bind the undersigned and
different evidence could produce a different result. However, the undersigned has adopted the
McCulloch findings. Avchen v. Sec’y of Health & Human Servs., No. 14-279V, 2015 WL
9595415, at *3 (Fed. Cl. Spec. Mstr. Dec. 4, 2015).
Third, the special master compares the local rate (say, the St. Louis, Missouri rate) to the
forum rate (presumptively set forth in McCulloch). The comparison could produce three results:
1. If the local rate is higher than the forum rate, then the special master awards the
forum rate. See Rodgriguez v. Secʼy of Health & Human Servs., No. 06-559V, 2009
WL 2568468, at *16-19 (Fed. Cl. Spec. Mstr. July 27, 2009) (discussing high cost
exception to forum rate), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d 632 F.3d
1381 (Fed. Cir. 2011). In this situation, the forum rate caps the attorney’s hourly rate.
2. If the local rate is significantly different from (significantly lower than) the forum
rate, then the special master awards the local rate. See Masias, 634 F.3d at 1287. In
this situation, the structure avoids producing a windfall to the petitioner’s attorney.
3. If the local rate is not “significantly different from” the forum rate, then the special
master awards the forum rate. In this situation, the forum rate serves to make hourly
rates relatively uniform.
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For information about what constitutes a significant difference between the local rate and
forum rate, see Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1356-57 (Fed. Cir.
2011).
Petitioner’s attorney should recognize that the Federal Circuit either requires or has
endorsed much of this process. Petitioner’s attorney is advised to submit applications that
conform to this structure. For example, if an attorney requests an hourly rate that exceeds the
hourly rate found in McCulloch, the undersigned will require persuasive evidence and arguments
to justify that result.
Reasonable Number of Hours
After finding a reasonable hourly rate, the special master finds a reasonable number of
hours. Avera, 515 F.3d at 1347-48; see also Guidelines, Section X, Chapter 2.b & Chapter
3.B.1.b. The foundation for this finding is the set of timesheets that the attorneys and other
professionals prepare. The professionals are expected to record their time contemporaneously
and billing in intervals of one-tenth of an hour (0.1 hours) is preferred.
In submitting an application based on the timesheets, the petitioner’s attorney is expected
to exercise “billing judgment.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521
(Fed. Cir. 1993). In some cases, an appropriate “billing judgment” is to charge for all the work
listed on the invoice. In other cases, an appropriate “billing judgment” is to reduce or to
eliminate time charged for a particular task. In this situation, the petitioner’s attorneys may
usefully demonstrate that they have exercised their billing judgment by showing how they have
eliminated time that is excessive, unreasonable, or redundant. 1 For example, scenario 4, below,
may lead to a lower amount of time than expected, and should be explained.
To assist the petitioner’s attorney in presenting the fee application, the undersigned
provides a list of issues in which the reasonableness of the activity raises some questions. These
items are concerns; they are not bright-line tests.
1. Multiple attorneys working on a case. A partner or senior attorney, who charges a
high rate, may work with an associate, who charges a lower rate. However,
participation of more than two attorneys tends to be reasonable only if the additional
attorneys bring expertise that the other attorneys do not have.
2. Attorneys charging attorney rates for performing paralegal tasks. An attorney’s high
hourly rate reflects, in part, the attorney’s education and training. Tasks that do not
require this background, such as collecting medical records, should be charged at a
lower rate.
3. Paralegals charging paralegal rates for performing clerical tasks. An attorney’s
hourly rate is designed to produce income to pay for general overhead expenses, such
as a secretary / clerical support. As such, the law firm should not charge separately
for clerical work.
1
In contrast, a general statement from the petitioner’s attorney to the effect that “I used my judgment” without any
showing as to how the attorney adjusted the invoice is not likely to be persuasive.
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4. Copying and pasting from one document to another. An attorney may charge a
reasonable amount of time to prepare an original document (for example, 5 hours to
set forth the facts in the petition). If the attorney copies that material into another
document (for example, the factual portion of a pre-trial brief), the attorney may not
charge the 5 hours again. This principle also forbids duplicate charging across cases.
For example, if an attorney spends 3 hours writing a reply brief on attorneys’ fees in
the Abbott case, the attorney may not charge 3 hours for filing a substantially
identical brief in the Baker case.
5. Block billing. Each discrete task should have a specific entry. A rule of thumb is that
tasks that require more than one hour should be further refined. For example, “review
of medical records – 5.0 hours” provides less information than “review of exhibit 1 –
0.5 hours, review of exhibit 2 – 2.0 hours, review of exhibit 3 (hospital records 2.5
hours).”
6. Vague entries. The entries on the time sheet should stand alone. A rule of thumb is
that entries should contain more than 10 words. For example, “review respondent’s
expert report to prepare for tomorrow’s status conference” provides more information
than “review file.” Even privileged communications should contain more detail than
simply saying “Telephone call with client.” See Avgoustis v. Shinseki, 639 F.3d
1340, 1344-45 (Fed. Cir. 2011)
It would be helpful for the petitioner’s attorney to summarize the requested hourly rate
and the requested number of hours for each person in a chart. Here is an example:
Name Year Work Number of Subtotal
Hourly Rate
Performed Hours
Partner 2015 $400 10 $4,000
Partner 2016 $405 2 $810
Associate 2015 $300 50 $15,000
Paralegal 2015 $100 20 $2,000
TOTAL $21,810
Applications that comply with these instructions are likely to be readily understood and
may receive expedited consideration due to their ease of adjudication. In contrast, applications
that do not comply with these instructions may be difficult to understand and may require a more
time-intensive review. If the petitioner’s attorney has questions about the process for attorneys’
fees, the petitioner should request a status conference. The undersigned will assist in making this
process as efficient as possible.
Any questions regarding this order may be directed to my law clerk, Shannon Proctor, at
(202) 357-6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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