Miller v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 11, 2020
* * * * * * * * * * * * * *
BRITTON MILLER, * No. 17-297V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner;
Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On March 3, 2017, Britton Miller (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq. (2012).
Petitioner alleged that he developed a shoulder injury related to vaccine administration (“SIRVA”)
as a result of the influenza vaccine he received on October 25, 2015. On August 6, 2019, the parties
filed a stipulation for award, which the undersigned adopted as her decision awarding
compensation on August 12, 2019. ECF No. 51.
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
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).
On February 10, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 56
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $52,316.03,
representing $45,943.40 in attorneys’ fees and $6,372.63 in attorneys’ costs. Fees App. at 1.
Pursuant to General Order No. 9, Petitioner has indicated that he has not incurred any out of pocket
costs. Id. Respondent responded to the motion on February 11, 2020, stating that Respondent “is
satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this
case” and asking the Court to “exercise its discretion and determine a reasonable award for
attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 57. Petitioner filed a reply on February
13, 2020, reiterating his belief that the requested attorneys’ fees and costs are reasonable.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. 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 calculation of the fee award based on
specific findings. Id. at 1348.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
a. Hourly Rate
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3
Petitioner requests the following rates for his counsel, Ms. Leah Durant: $350.00 per hour
for work performed in 2016, $365.00 per hour for work performed in 2017, $377.00 per hour for
work performed in 2018, and $380.00 per hour for work performed in 2019. These rates are
consistent with what Mr. Durant has previously been awarded for her Vaccine Program work, and
the undersigned finds them to be reasonable for work in the instant case.
b. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and upon review, the
undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $45,943.40.
c. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $6,372.63 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, and work performed by Petitioner’s expert Dr. Clifford Colwell, Jr. Fees App.
Ex. 2 at 2. Petitioner has provided adequate documentation of all these expenses and all appear
reasonable in the undersigned’s experience.4 Accordingly, the requested attorneys’ costs shall be
awarded in full.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and his counsel as follows:
Attorneys’ Fees Requested $45,943.40
(Reduction to Fees) -
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
4
Concerning the work of Dr. Colwell, the undersigned finds the total amount of attorneys’ costs
attributable to his work is reasonable in light of the work performed in the instant case. The undersigned
is not making a determination as to the reasonableness of his billed hourly rate at this time.
Total Attorneys’ Fees Awarded $45,943.40
Attorneys’ Costs Requested $6,372.63
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $6,372.63
Total Attorneys’ Fees and Costs $52,316.03
Accordingly, the undersigned awards a lump sum in the amount of $52,316.03,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and his attorney, Ms. Leah Durant.
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.5
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.