DocketNumber: 18-133
Judges: Brian H. Corcoran
Filed Date: 4/28/2020
Status: Non-Precedential
Modified Date: 4/29/2020
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0133V (not to be published) MELISSA NORRED, Chief Special Master Corcoran Petitioner, v. Filed: March 26, 2020 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent. DECISION GRANTING AWARD OF ATTORNEY’S FEES AND COSTS 1 On January 26, 2018, Melissa Norred 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 following an influenza vaccine administered on November 4, 2015. (Petition at 1). On February 5, 2020, a decision was issued awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 50). 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 February 6, 2020 (ECF No. 51), requesting a total award of $37,037.07 (representing $36,091.00 in fees and $946.07 in costs). In accordance with General Order #9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses in prosecuting this matter. (ECF No. 51). Respondent reacted to the motion on February 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. 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 total fees and costs requested is 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, a 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). As a result, fee requests “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 FEES In the Vaccine Program, secretarial work “should be considered as normal overhead office costs included within the attorney’s fee rates.” Rochester v. U.S.,18 Cl. Ct. 379
, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V,2014 WL 630473
, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.” Mostovoy v. Sec’y of Health & Human Servs,2016 WL 720969
, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). Many of the objectionable entries are for receiving documents and paying invoices. Examples of these tasks include: • November 9, 2017 (0.20 hrs) “Receive and review invoice for medical records from Dr. David Zeman; process invoice for payment”; • November 16, 2017 (0.20 hrs) “Process payment for medical records to Pinnacle Medical Group”; • November 29, 2017 (0.20 hrs) “Receive and review invoice for medical records from Cradiac Chiropractic; process invoice for payment”; • December 1, 2017 (0.20 hrs) “Process payment for medical records to Southwest Rehab”; • January 18, 2018 (0.20 hrs) “Process payment for medical to Dr. David C. Zeman”; • April 13, 2018 (0.20 hrs) “Receive and review invoice for medical records from Dr. Zeman; process invoice for payment”; and • October 9, 2018 (0.20 hrs) “Receive and review correspondence from The Orthopedic Surgery Center of Arizona re: invoicing for medical records; draft correspondence to AAD re: payment of invoice.” (ECF No. 51-1 at 8-10 and 12-14). 3 The request for attorney fees is reduce by $769.50, the total amount of the tasks considered administrative. 4 ATTORNEY COSTS 3 These are merely examples and not an exhaustive list. 4 This amount consists of 5.7 hrs x $135 = $769.50. 3 Petitioner requests $946.07 in overall costs. (ECF No. 51 at 1). 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 the overall amount 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 $36,267.57 (representing $35,321.50 in fees and $946.07 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. 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