Parlette v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1227V
(Not to be published)
*************************
JAMES DANIEL PARLETTE, *
* Special Master Corcoran
Petitioner, *
* Dated: December 27, 2018
v. *
* Attorney’s Fees and Costs.
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
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Scott William Rooney, Nemes, Rooney P.C., Farmington Hills, MI, for Petitioner.
Althea Walker Davis, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING FINAL AWARD OF ATTORNEYS’ FEES AND COSTS1
On September 11, 2017, James Parlette filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 alleging that he suffered
from Guillain-Barré syndrome (“GBS”) as a result of receiving the influenza vaccine on September
18, 2014. Pet. at 1 (ECF No. 1). On June 14, 2018, Respondent filed his Rule 4(c) Report, in which
he acknowledged that Petitioner had satisfied the elements for a Table claim. ECF No. 34. I
subsequently issued a ruling finding entitlement to compensation, along with an order directing
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its current form.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
the parties to resolve damages. ECF No. 35; ECF No. 36. Respondent made a proffer on August
31, 2018 (ECF No. 39), which I found to be reasonable and adopted as my decision awarding
damages on September 7, 2018. ECF No. 40.
Having received no interim award of attorney’s fees and costs, Petitioner now requests a
final award of fees and costs, in the total sum of $9,625.45 (reflecting $8,146.00 in attorney’s fees,
plus $1,479.45 in costs). See Motion, dated November 27, 2018 (ECF No. 43). Respondent reacted
to Petitioner’s Motion on December 11, 2018, representing that the statutory and other legal
requirements for an award of attorneys’ fees and costs had been met, and otherwise deferring the
calculation of a reasonable final award to my discretion. Response at 2–3 (ECF No. 44). At my
direction, Petitioner has also filed additional documentation substantiating some of the requested
costs. See Ex. 9 (ECF No. 47).
ANALYSIS
I. Attorney’s Fees Award
All requests for attorney’s fees must be “reasonable” in terms of rates requested and work
performed. Section 15(e)(1). Vaccine Program fees awards are calculated using the lodestar
method, in which the special master “multipl[ies] the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Human Servs., 515 F.3d
1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Special
masters may adjust the award as necessary, either by modifying the elements of the lodestar
formula or through a post hoc adjustment of the resulting figure. Id. at 1348. Petitioners bear the
burden of showing that both the requested hourly rates and the hours expended are reasonable. See
Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *3, *23 (Fed.
Cl. Spec. Mstr. July 27, 2009).
Petitioner requests reimbursement for work done by his attorney, Mr. Rooney, as well as
an individual identified in the Motion only as “LA/A.” See generally Motion Ex. 1. Mr. Rooney
billed at an hourly rate of $350.00 for his work in this case, which began in October 2017. Motion
at 1; Motion Ex. 1 at 1. Petitioner asserts that this rate has been “approved by other courts” for Mr.
Rooney, but provides no specific examples (in Vaccine Program decisions or otherwise). Motion
at 1. I note, however, that Mr. Rooney was recently awarded in another Program case $300.00 per
hour for work performed in 2017, and $350.00 per hour for work in 2018. Thomas v. Sec’y of
Health & Human Servs., No. 14-966V, 2018 WL 5725184, at *2 (Fed. Cl. Spec. Mstr. Oct. 5,
2018).3
3
Although Mr. Rooney has not established that he is entitled to in-forum rates as set forth in McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), I find his requested
rates reasonable in light of his experience. My decision to award the rate requested for 2018 does not constitute a
formal determination that he should generally receive a forum rate in all cases.
2
In the interest of consistency, I will similarly reduce Mr. Rooney’s rate to $300.00 for work
performed in 2017, but will otherwise award him the $350 requested. The unidentified “LA/A” is
likely a legal assistant, and this individual billed at a rate of $60.00 per hour for both 2017 and
2018. See generally Motion Ex. 1. I find that rate to be reasonable and will not modify it.
I otherwise find the numbers of hours expended by Petitioner’s counsel and his paralegal
to be reasonable. Applying Mr. Rooney’s reduced rate for 2017, I will award $7,801.00 in
attorney’s and paralegal fees, a reduction of $345.00.
II. Costs Award
In addition to demonstrating that the requested attorney’s fees are reasonable, Vaccine
Program petitioners must also demonstrate the reasonableness of requested costs. Perreira v. Sec’y
of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Reasonable costs may include, inter alia, expenses incurred to obtain medical records, copying
and postage costs, and expert costs. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013
WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). In exercising their substantial discretion,
other special masters have declined to award costs that are not appropriately substantiated. See,
e.g., Hirmiz v. Sec’y of Health & Human Servs., No. 06-371V, 2017 WL 4277433, at *12 (Fed.
Cl. Spec. Mstr. Aug. 29, 2017); Mostovoy v. Sec’y of Health & Human Servs., No. X, 2016 WL
720969, at *16–17 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Gardner-Cook v. Sec’y of Health & Human
Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). However,
special masters may elect to award unsubstantiated costs if they appear reasonable and necessary
to the prosecution of a petitioner’s claim. See Rodriguez, 2009 WL 2568468, at *21–22.
Petitioner requests reimbursement of $1,479.45 for costs incurred in this matter. Motion
at 2. Of this request, $536.57 was borne specifically by counsel for obtaining medical records,
copying, faxing, scanning, and legal research (Motion Ex. 1 at 6–7), with the remaining $942.88
reflecting the cost of obtaining medical records, sending documents, and payment of the filing fee
in this case. See generally Motion Ex. 2; Ex. 9.
Overall, the requested costs seem reasonable in terms of the nature of this case. Only
$818.30 of Petitioner’s costs (and none of the costs borne by Petitioner’s counsel) have been
substantiated with receipts or other documentation, but I find the costs requested to be sufficiently
reasonable and necessary to the prosecution of Petitioner’s claim. I will therefore award the
requested costs in full, a sum of $1,479.45.4
4
In the future, however, counsel will not be awarded costs that are not substantiated with invoices. The in-firm copying
of documents by an attorney is more of an overhead expense than a third party charge properly submitted as a Vaccine
Program cost.
3
Accordingly, in the exercise of the discretion afforded to me in determining final fees and
costs awards, and based on the foregoing, I GRANT IN PART Petitioner’s Motion, and award a
total of $9,280.45 in fees and costs as a lump sum in the form of a check jointly payable to
Petitioner and Petitioner’s counsel, Mr. Scott W. Rooney.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of this decision.5
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
5
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
4