Missan v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0311V
(not to be published)
MARISSA MISSAN,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 24, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Ida Nassar, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On February 27, 2019, Marissa Missan 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 alleges that she suffered a shoulder injury related to vaccine
administration as a result of an influenza vaccine that was administered to her left
shoulder on October 6, 2017. (Petition at 1). On April 7, 2020, a decision was issued
awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 32).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 July 10, 2020,
(ECF No. 37), requesting a total award of $16,097.20 (representing $15,051.80 in fees
and $1,045.40 in costs). In accordance with General Order #9, Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 37-4).
Respondent reacted to the motion on July 22, 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
defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 38).
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. §
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). A 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). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. 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 FEES
Petitioner requests the following rates for his attorneys at the following rates: for
Jeffrey Pop, $420 per hour for 2018, $453 per hour for 2019, and $470 per hour for 2020
and for Alexandra Pop, $225 per hour for 2018, $262 per hour for 2019, and $315 per
hour for time billed in 2020; and for. (ECF No. 37-2 at 2). Petitioner also requests
paralegal rates of $132 – $155 per hour, based the year the time was billed. (Id). The
2018 and 2019 rates for Mr. Jeffrey Pop, Ms. Alexandra Pop and the paralegals have
been previously awarded, and I find no cause to deviate from those rates. I also find Mr.
Pop’s requested rate increase for 2020 to be reasonable and award it herein.
However, I will make an adjustment for Alexandra Pop’s 2020 requested rate.
Although that rate is within the appropriate experience range utilized by the Office of
Special Masters, 3 and although Ms. Pop’s work justifies a rate increase, the degree of
increase requested herein is somewhat high. Rather, relying on the factors set forth in
McCulloch v. Health and Human Services, No. 09–293V, 2015 WL 5634323 at *17 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015) (experience in the Vaccine Program, overall legal
experience, the quality of work performed, and the reputation in the legal community and
community at large), a somewhat lesser increase to $295 per hour is more appropriate
for her time billed in 2020, and also more consistent with the magnitude of prior increases.
This reduces the attorney fees to be awarded in this case by the amount of $84.00. 4
ATTORNEY COSTS
Petitioner requests $1,045.40 in overall costs. (ECF No. 37 at 12). This amount is
comprised of obtaining medical records, pacer fees and the Court’s filing fee. I have
reviewed all the requested costs and find them to be reasonable and shall award it in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $16,013.20 (representing $14,967.80 in fees and $1,045.40 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
3
The Attorneys’ Fee Schedule for 2020 is available at http://www.uscfc.uscourts.gov/node/2914.
4 This amount consists of $315 - $295 = $20 x 4.2 hrs = $84.
3
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. 5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 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