Rael v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
ELISEO RAEL, *
* No. 16-1462V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: May 29, 2020
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Eliseo Rael’s motion for final
attorneys’ fees and costs. He is awarded $32,966.04.
* * *
On November 4, 2016, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
1
Because this published decision contains a reasoned explanation for the action in this
case, the undersigned is 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 posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access.
Petitioner alleged that the influenza vaccine he received on December 17, 2015,
which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused him to
suffer a shoulder injury related to vaccine administration. Petitioner further alleged
that he suffered the residual effects of this injury for more than six months. On
February 9, 2017, the previously assigned special master issued her ruling on
entitlement, finding that petitioner was entitled to compensation for his vaccine
injury. Thereafter, the parties could not agree upon the amount of compensation to
which petitioner was entitled, and the case was assigned to the undersigned. The
parties submitted reports from vocational experts regarding lost earnings and also
submitted briefs. On January 28, 2020, the undersigned issued his decision
awarding compensation to petitioner in the amount of $88,032.56. 2020 WL
901499 (Fed. Cl. Spec. Mstr. Jan. 28, 2020).
On February 19, 2020, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $30,259.00 and
attorneys’ costs of $3,107.04 for a total request of $33,366.04. Fees App. at 2.
Pursuant to General Order No. 9, petitioner warrants that he has not personally
incurred any costs related to the prosecution of her case. Id. On February 19, 2020,
respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id at 2. Additionally, he recommends “that the Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Because petitioner received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
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calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates of compensation for the work of his
counsel: for Ms. Amy Senerth, $225.00 per hour for work performed in 2017,
$233.00 per hour for work performed in 2018, $250.00 per hour for work
performed in 2019, and $275.00 per hour for work performed in 2020; for Mr. Paul
Brazil, $275.00 per hour for work performed in 2016; and for Mr. Clark Hodgson,
$200.00 per hour for work performed in 2016 and 2017.
The undersigned has reviewed the requested rates and finds them to be
reasonable and consistent with what special masters have previously awarded to
petitioner’s counsel at Muller Brazil, LLP for their Vaccine Program work. See,
e.g. Wood v. Sec’y of Health & Human Servs., No. 15-1568V, 2019 WL 518521
(Fed. Cl. Spec. Mstr. Jan. 11, 2019); Ditsche v. Sec’y of Health & Human Servs.,
No. 18-511V, 2020 WL 1815767 (Fed. Cl. Spec. Mstr. Mar. 10, 2020).
Accordingly, the requested hourly rates are reasonable.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
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The undersigned has reviewed the submitted billing entries and on the
whole, the request is reasonable. However, a minor amount of time was billed for
administrative tasks such as filing medical records by paralegals and attorneys
billing time to direct the filing of those records. See Guerrero v Secʼy of Health &
Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May
22, 2015) (citing cases), mot. for rev. den’d in relevant part and granted in non-
relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-1753 (Fed.
Cir. Apr. 22, 2016). Additionally, there is some excessive time spent on review of
routine filings based upon those filing being reviewed by both an attorney and a
paralegal. Based upon the undersigned’s overall perception of the time billed after
review, a reduction of $400.00 is appropriate in order to achieve “rough justice.”
See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL
6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S.
826, 838 (2011).
In sum, petitioner is awarded final attorneys’ fees of $29,859.00.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$3,107.04 in attorneys’ costs. This amount is comprised of acquiring medical
records, the Court’s filing fee, and work performed by petitioner’s vocational
expert. Petitioner has provided adequate documentation supporting all of the
requested costs, and all appear reasonable in the undersigned’s experience. The
invoice from Dennis Mohn for a vocational assessment does not contain a
sufficient amount of detail to assess the reasonableness of the activity. Fees App. at
28. However, because the amount requested ($1,200.00) is relatively small, no
deduction is made. But, in the future, Mr. Mohn is expected to provide more
descriptive invoices. Petitioner is therefore awarded the full amount of attorneys’
costs sought.
E. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $32,966.04 (representing
$29,859.00 in attorneys’ fees and $3,107.04 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Ms. Amy
Senerth.
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In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
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