Anderson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
* * * * * * * * * * * * * * * * * * * ** *
TIMOTHY ANDERSON, *
* No. 16-752V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: November 6, 2018
*
SECRETARY OF HEALTH * Attorneys’ fees and costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Danielle A. Strait, Maglio Christopher & Toale, Seattle, WA, for Petitioner;
Adriana R. Teitel, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Timothy Anderson prevailed in his claim brought in the National Childhood
Vaccine Compensation Program. He is now seeking an award for attorneys’ fees
and costs. He is awarded $25,323.88.
* * *
On June 27, 2016, Mr. Anderson filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 – 34, for injuries
sustained from a tetanus-diphtheria-acellular pertussis vaccination administered on
July 22, 2013. The parties submitted a joint stipulation that was incorporated by a
decision awarding petitioner compensation in the amount of $235,000.00.
Decision, 2018 WL 615074 (Jan. 2, 2018).
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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
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Following the entry of judgment, petitioner filed a motion for an award of
attorneys’ fees and costs. Pet’r’s Mot., filed June 28, 2018. The motion seeks a
total of $25,520.18, comprised of $20,604.30 in attorneys’ fees and $4,915.88 in
attorneys’ costs. Id. at 1-2. In compliance with General Order No. 9, petitioner
filed a signed statement indicating that he did not incur any costs personally.
Exhibit 13 at 1 (General Order #9 Statement).
Respondent then filed a response to petitioner’s motion. Resp’t’s Resp.,
filed July 12, 2018. Respondent stated that he is “satisfied that the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Id at
2. Respondent did not submit any specific objections to the amounts requested by
petitioner and “recommends that the Special Master exercise his discretion.” Id at
3.
On July 16, 2018, petitioner filed a reply to respondent’s response.
Petitioner generally objects to respondent’s failure to evaluate the fees petition and
provide specific positions on the amounts requested. Pet’r’s Reply, filed July 16,
2018, at 2-3. Petitioner reiterated his request for fees and costs.
This matter is now ripe for adjudication.
* * *
Because Mr. Anderson received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). An evaluation of
the reasonableness of the requested attorneys’ fees and costs follows.
I. Attorneys’ Fees
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
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.
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A. Reasonable Hourly Rate
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.
Since, the bulk of work was done within the District of Columbia, the so-called
Davis County does not apply here. 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)). The respondent did not object to any of the proposed
hourly rates as unreasonable.
Petitioner requests compensation for attorney Danielle Strait and various
law clerks. For Ms. Strait, petitioner requests the rates of $300/hour in 2016,
$320/hour in 2017, and $322/hour in 2018. For the law clerks, petitioner requests
rates ranging from $105/hour to $148/hour over the time period of 2016-2018.
As noted in Russell v. Sec'y of Health & Human Servs., Ms. Strait’s 2018
rate was found reasonable, but her 2016 and 2017 rates were found unreasonable
because they were outside the permissible range of hourly rates for an attorney
with her level of experience. No. 16-1091V, 2018 WL 3989456, at *6 (Fed. Cl.
Spec. Mstr. July 17, 2018) (for 2016 and 2017, Ms. Strait was within the 4-7 years
of experience range). Here, Ms. Strait requested the 2016 ($300/hour) and 2018
($322/hour) rates that were found reasonable in Russell, but her requested 2017
rate was still the rate found unreasonable in Russell ($320/hour). Thus, Ms.
Strait’s 2017 rate is reduced to $307/hour (resulting in a deduction of $196.30).
Ms. Strait’s 2016 and 2018 rates are reasonable and are awarded in full. The rates
for the law clerks at Ms. Strait’s firm have previously been found reasonable and
are awarded in full. Beck v. Sec'y of Health & Human Servs., No. 15-1355V, 2018
WL 5118548, at *2 (Fed. Cl. Spec. Mstr. Aug. 9, 2018).
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.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See Shea v. Sec’y of Health & Human
Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,
2015) (“special masters are not obligated to evaluate an attorney’s billing records
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on a line-by-line basis in making the reasonableness determination … and certainly
need not do so when Respondent has not attempted to highlight any specific
alleged inefficiencies”). Ms. Strait has provided sufficiently detailed invoices for
her time entries and for her paralegal’s entries. The undersigned finds the hours to
be reasonable and awards them in full.
II. Costs
Petitioner requests a total of $4,915.88 in attorney’s costs, consisting of
costs expended for the filing fee, medical records, mailings, and expert witnesses.
Exhibit 14 at 1. Respondent has not objected to the amounts requested for
attorneys’ costs. The costs for routine items, such as the filing fee, medical
records, and postage, are adequately documented and are awarded in full.
The majority of the attorneys’ costs are for consulting services with LitCon
Group ($4,012.50). As noted in their invoice, LitCon Group provided lost wages
analysis for petitioner that was presumably used during the settlement process.
Exhibit 14 at pdf 25. The undersigned finds that the costs for LitCon group are
reasonable and are awarded in full.
III. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The undersigned GRANTS the petitioner’s motion and finds $25,323.88
($20,408.00 in fees and $4,915.88 in costs) to be a reasonable amount for all
attorneys’ fees and costs incurred. This shall be paid as follows:
A lump sum of $25,323.88 in the form of a check made payable to
petitioner and petitioner’s attorney, Danielle A. Strait, for attorneys’ fees and
costs available under 42 U.S.C. § 300aa-15(e).
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), entry of judgment can be expedited by the parties’ joint
filing of notice renouncing the right to seek review.
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