Mueller v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 13, 2020
* * * * * * * * * * * * * *
RALPH MUELLER, * No. 17-1318V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Robert P. Coleman, III, United States Department of Justice, Washington, D.C., for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 25, 2017, Ralph Mueller (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34
(2012). The petition alleged that the influenza (“flu”) vaccine Petitioner received on October 31,
2014, and the tetanus-diphtheria-acellular pertussis (“Tdap”) vaccine he received on December 2,
2014, caused him to suffer from Guillain-Barré syndrome (“GBS”). On July 26, 2019, the parties
filed a stipulation, which the undersigned adopted as her decision awarding compensation on July
30, 2019. ECF No. 40.
On October 8, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF No.
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
45 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $16,620.26
(representing $15,512.50 in fees and $1,107.76 in costs). Fees App. at 1. Pursuant to General Order
No. 9, Petitioner warrants that he has not personally incurred any costs. Fees App. at 2. Respondent
responded to the motion on October 22, 2019, indicating that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the
undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and
costs.” Resp’t’s Resp. at 2–3 (ECF No. 47). Petitioner did not file a reply thereafter.
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 Rates
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
2
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3
Petitioner requests the following rates for his attorneys: for Ms. Meredith Daniels, $286.00
per hour for work performed in 2017, $294.00 per hour for work performed in 2018, and $320.00
per hour for work performed in 2019; for Mr. Joseph Pepper, $305.00 per hour for work performed
in 2018 and $325.00 per hour for work performed in 2019; for Mr. Ronald Homer, $409.00 per
hour for work performed in 2017, $421.00 per hour for work performed in 2018, and $430.00 per
hour for work performed in 2019; for Ms. Lauren Faga, $285.00 per hour for work performed in
2019; and for Mr. Patrick Kelly, $205.00 per hour for work performed in 2019. Fees App. at 16.
All of these rates are consistent with what these Conway, Homer, P.C. attorneys have previously
been awarded in Vaccine Program cases, and the undersigned finds them to be reasonable herein.
b. Hours Expended
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.
Upon review, the undersigned finds the billed hours 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. Respondent has also not indicated that he
finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final
attorneys’ fees in the amount of $15,512.50.
c. Attorneys’ 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 $1,107.76 in attorneys’ costs. This amount is comprised of acquiring medical records,
postage, the Court’s filing fee, and travel to meet with Petitioner. Fees App. at 14-15. Petitioner
has provided adequate documentation to support these costs and in the undersigned’s experience
they are reasonable. Accordingly, Petitioner is entitled to the full amount of costs sought.
II. Conclusion
3
The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
3
Based on all the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
Attorneys’ Fees Requested $15,512.50
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $15,512.50
Attorneys’ Costs Requested $1,107.76
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $1,107.76
Total Attorneys’ Fees and Costs $16,620.26
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-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. Accordingly, the undersigned awards the following:
1) A lump sum in the amount of $16,620.26, representing reimbursement for Petitioner’s
attorneys’ fees and costs, in the form of a check payable to Petitioner and his attorney,
Mr. Ronald Homer.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
4