Bradley v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1535V
(not to be published)
KENNETH A. BRADLEY,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 19, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEY’S FEES AND COSTS 1
On October 4, 2018, Kenneth A. Bradley 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 allegeD that that he suffered a left shoulder injury related to
vaccine administration as a result of an influenza vaccination received on January 26,
2018. (Petition at 1). On December 11, 2019, a decision was issued awarding
compensation to Petitioner based on the Respondent’s proffer. (ECF No. 26).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 “§” 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 January 7,
2020 (ECF No. 31), requesting a total award of $23,903.95 (representing $23,301.20 in
fees and $602.75 in costs). In accordance with General Order #9 Petitioner filed a signed
statement indicating that he incurred no out-of-pocket expenses in prosecuting this
matter. (ECF No. 31-3). Respondent reacted to the motion on January 20, 2020,
indicating that he is satisfied that the statutory requirements for an award of attorney’s
fees and costs are met in this case, and deferring to my discretion to determine the
amount to be awarded. (ECF No. 33). 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). 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. at 482, 484 (1991), aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993) (per curiam).
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’S FEES
The determination of the amount of reasonable attorney’s fees is within the special
master's discretion. See, e.g., Saxton v. Health & Human Servs., 3 F.3d 1517,1520 (Fed.
Cir. 1993). Special masters have “wide latitude in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Health & Human Servs, 22 Cl. Ct. 750, 753 (Fed. Cl.
1991). Moreover, special masters are entitled to rely on their own experience and
understanding of the issues raised. Wasson, 24 Cl. Ct. at 483.
Petitioner requests the following rates of compensation for the work of his
attorneys: Jimmy A. Zgheib at $238 per hour for work performed in 2018, $243 per hour
for work performed in 2019, and $300 per hour for 2020 work; AnnMarie Sayad at $238
per hour for work performed in 2018, and $243 per hour for work performed in 2019;
Jennifer Sayad at $291 per hour for time billed in 2018, $300 per hour for time billed in
2019, and $320 for 2020 work; and Joseph Sayad at $240 per hour for work performed
in 2018, and $250 for time billed in 2019. (ECF No. 31-1 at 4).
The requested 2018 and 2019 rates are consistent with what has been previously
awarded to Mr. Zgheib and attorneys of Zgheib Sayad. Accordingly, no adjustment to
these requested rates is necessary. However, I will make the following rate adjustments
to Mr. Zgheib’s 2020 rate.
Although the requested rate for Mr. Zgheib’s 2020 work is within the appropriate
experience range, I find the increase to be excessive. 3 Based on my experience and the
McCulloch factors (stating the following factors are paramount in deciding a reasonable
forum hourly rate: experience in the Vaccine Program, overall legal experience, the
quality of work performed, and the reputation in the legal community and community at
large) 4 as applied to Mr. Zgheib, the rate of $275 is more appropriate for his time billed in
2020, and a reasonable increase from the rates he received for the two prior years. This
reduces the request for attorney fees relating to work he performed on this case in the
amount of $107.50. 5
Jennifer Sayad, by contrast, is awarded the 2020 rate requested. She has been a
licensed attorney since 2011, placing her in the range of attorneys with 8 – 10 years’
3
The Attorneys’ Fee Schedule for 2020 is available at http://www.uscfc.uscourts.gov/node/2914.
4See McCulloch v. Health and Human Services, No. 09–293V, 2015 WL 5634323 at *17 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015).
5 This amount consists of $300 - $275 = $25 x 4.30 hrs = $107.50.
3
experience. I find the rate increase sought to be reasonable given my experience in the
Vaccine Program, Ms. Sayad’s overall legal experience, and quality of the work
performed and award the requested rate in full. Accordingly, her time spent on this matter
for 2020 shall not be reduced.
ATTORNEY COSTS
Petitioner requests $602.75 in overall costs. (ECF No. 31-2). 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 award overall the
requested amount award 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 $23,796.45 (representing $23,193.70 in fees and $602.75 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. 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
4