Green v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
ROBERTA GREEN, *
* No. 13-920V
Petitioner, * Special Master Christian J. Moran
*
v. *
*
SECRETARY OF HEALTH * Filed: April 14, 2016
AND HUMAN SERVICES, *
* Attorneys’ fees and costs; hourly
Respondent. * rate
******************** *
Reneé J. Gentry, Vaccine Injury Clinic, George Washington University Law
School, Washington DC, counsel for petitioner;
Glenn A. MacLeod, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
On October 30, 2015, petitioner, Roberta Green (“Ms. Green”), filed an
application for attorneys’ fees and costs. See Pet’r’s App. Respondent filed a
response to Ms. Green’s application on November 20, 2015. See Resp’t’s Resp.
She deferred to the special master to determine the attorneys’ reasonable hourly
rate and did not raise any specific objections to number of hours or costs claimed.
Id. at 1. A status conference was held on April 4, 2016, to discuss the application.
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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.
For the reasons set forth below, the undersigned awards Ms. Green
$29,824.81 in reimbursement for fees and costs.
PROCEDURAL HISTORY
Ms. Green alleges that the trivalent influenza (“flu”) vaccine, contained in
the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a), and which she
received on October 11, 2011, caused her to suffer Guillain-Barré Syndrome
(“GBS”). See Pet., filed Nov. 21, 2013. While the Secretary did not concede that
the flu vaccination caused Ms. Green’s GBS or subsequent injuries, a joint
stipulation was filed by respondent. Joint Stipulation filed May 1, 2015. The
undersigned issued a decision pursuant to the joint stipulation and Ms. Green was
awarded $165,000. Decision, issued May 4, 2015.
With the merits of Ms. Green’s case resolved, the parties turned to the issue
of attorneys’ fees and costs. On October 30, 2015, Ms. Green filed a motion for
attorneys’ fees and costs in the amount of $30,114.42 and costs incurred by
petitioner in the amount of $400.49. Pet’r’s App. at 1.
Respondent filed her response on November 20, 2015, and deferred to the
special master’s discretion in adjudicating a reasonable hourly rate for Ms. Green’s
counsel. Resp’t’s Resp. at 1. Further, respondent raised no specific objections to
the number of hours billed by Ms. Green’s counsel or the costs claimed. Id. A
status conference was held on April 4, 2016, to discuss a reasonable hourly rate.
This matter is now ripe for adjudication.
DISCUSSION
Respondent did not object the number of hours billed or the costs incurred
and left the determination of a reasonable hourly rate to the special master, thus the
undersigned is tasked with determining the reasonable hourly rates for the
attorneys.
I. Entitlement to Fees and Costs Under the Vaccine Act
Under the Vaccine Act, a special master or a judge of the United States
Court of Federal Claims shall award reasonable attorneys’ fees and costs for any
petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1);
Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). Ms. Green was awarded
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compensation, and therefore Ms. Green is entitled to an award of reasonable
attorneys’ fees and costs in this case.
II. Reasonableness of Requested Attorneys’ Fees and Costs
The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act, which involves 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.
Counsel must submit fee requests that include contemporaneous and specific
billing entries indicating the task performed, the number of hours expended on the
task, and who performed the task. See Savin v. Sec’y of Health & Human Servs.,
85 Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel must 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. Furthermore, the special master
may reduce fees sua sponte, apart from objections raised by respondent and
without providing petitioners notice and opportunity to respond. See Sabella v.
Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 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 (Fed. Cl. 2011).
A. Reasonable Hourly Rates
In her fee application, filed on October 30, 2015, Ms. Green requested the
following rates for the attorneys who worked on this matter; $385 per hour for
work performed in 2013 and $400 per hour for work performed in 2014 by
attorney Peter Meyers; $400 per hour for work performed in 2014 and $415 per
hour for work performed in 2015 by attorney Clifford J. Shoemaker; and $385 per
hour for work performed in 2014 and $400 per hour for work performed in 2015
by attorney Reneé J. Gentry. See Pet’r’s App. at 7, 9-13. Ms. Green based the
rates on McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
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5634323 (Fed. Cl. Spec. Mastr. Sept. 1, 2015) forum rates. Id. at 1 n.1.
Respondent deferred to the special master’s discretion for the hourly rates sought.
Resp’t’s Resp. at 1.
An appropriate hourly rate for the attorneys and law clerks practicing at the
forum rate was found in McCulloch, 2015 WL 5634323. Rates within the forum
are modified based on the attorney’s qualifications such as years of experience
within the Vaccine Program as well as quality of the work performed. The
McCulloch hourly rates range from $280 per hour for an attorney with 5 years of
experience in the Program all the way to $415 per hour with more than 20 years of
experience. The attorneys at the highest tier of McCulloch rates have extensive
experience practicing before Office of Special Masters, Court of Federal Claims,
and Federal Circuit, usually play large roles in the cases they bring in the Vaccine
Program, and often contribute to events associated with the Vaccine Program.
1. Mr. Meyers
Ms. Green requested an hourly rate of $385 in 2013 and $400 in 2014 for
Mr. Meyers. He served as an attorney at the George Washington University Law
School Vaccine Clinic (the “Clinic”), which is located in the forum, Washington,
DC. McCulloch establishes the reasonable hourly rate for attorneys practicing
within Washington, DC.
While Ms. Green did not provide background information to support Mr.
Meyers’s requested hourly rate, he is known to the Program. He directed the
Clinic for at least 15 years. See generally Domney v. Sec’y Health & Human
Servs., No. 94-1086V, 1999 WL 199059 (Fed. Cl. Spec. Mstr. Mar. 15, 1999).
The undersigned will award Mr. Meyers $385 for work performed in 2013,
and $400 per hour for work performed in 2014.
2. Mr. Shoemaker
Ms. Green requested an hourly rate of $400 in 2014 and $415 in 2015 for
Mr. Shoemaker. He is a partner at Shoemaker, Gentry & Knickelbein located in
Vienna, Virginia. In the status conference held on April 4, 2016, Mr. Shoemaker
stated that he served as a co-director of the Clinic, during the relevant years, and
thus entitling him to the forum rate for Washington, DC as governed by
McCulloch.
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Mr. Shoemaker also did not provide any background information to support
the hourly rate requested. However, he also is known to the Program.
The undersigned will award Mr. Shoemaker a rate of $400 per hour for the
work performed in 2014 and $415 per hour for the work performed in 2015.
3. Ms. Gentry
Ms. Green requested an hourly rate of $385 per hour and $400 per hour in
2014 and 2015 respectively for the work performed by Ms. Gentry. An affidavit
outlining Ms. Gentry’s legal experience was included in the application. In her
affidavit, Ms. Gentry stated that during the relevant years, she was a partner at
Shoemaker, Gentry & Knickelbein in Vienna, Virginia, co-taught at the Clinic in
2014, and became its co-director in 2015.
The forum rate for the Clinic is Washington, DC. However, with
McCulloch as guidance, Ms. Gentry does not quite fall in to a specific category of
rates. She has more than seven years of experience, but less than 20 years. Thus,
under McCulloch, her hourly rate should be more than $300 per hour, but less than
$400 per hour. While Ms. Gentry has less than 20 years of experience in the
Program, her qualifications place her at the higher end of the $300 to $400 per
hour range.
The undersigned finds the reasonable hourly rate for Ms. Gentry to be $375
per hour for work performed in 2014 and $400 per hour for work performed in
2015.
4. Law Students
In her fee application, Ms. Green did not request a specific hourly rate for
law students. However, after separating the law student’s total from the total fees
and costs, their implied requested rate was determined to be $150 per hour. The
law students worked on this case as part of their involvement in the Clinic, thus the
forum is Washington, DC, and governed by McCulloch. In McCulloch, the special
master determined $145 was the reasonable hourly rate for law students, who
worked at the firm as law clerks and under the supervision of attorney’s at the firm.
McCulloch, 2015 WL 5634323, at *21.
Therefore the undersigned finds their reasonable hourly rate to be $145.
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B. Reasonable Number of Hours
After a reasonable hourly rate is determined, the next step is to determine a
reasonable number of hours. Respondent did not raise any specific objections to
the number of hours billed or the costs incurred.
Mr. Meyers billed 4 hours and 3.3 hours in 2013 and 2014 respectively. At
a rate of $385 per hour in 2013 and at a rate of $400 per hour in 2014, Mr. Meyers
is awarded $2,860. Mr. Shoemaker billed 3.9 hours and 3.3 hours in 2014 and
2015 respectively. At a rate of $400 per hour in 2014 and at a rate of $415 per
hour in 2015, Mr. Shoemaker is awarded $2,929.50. Ms. Gentry billed 7.86 hours
in 2014 and 5.95 hours in 2015. Therefore, at a rate of $375 per hour in 2014 and
a rate of $400 per hour in 2015, Ms. Gentry is awarded $5,327.50. The law
students billed a total of 122.3 hours and at a rate of $145 per hour, they earn
$17,733.50 for their work performed.
CONCLUSION
The undersigned finds an award of attorneys’ fees and costs appropriate.
Ms. Green is awarded $29,824.81 in attorneys’ fees and costs. This shall be
paid as follows:
a. $29,424.32 representing attorneys’ fees and costs. The award shall be in
the form of a check made payable jointly to Ms. Green and her attorney,
Renee Gentry at the Vaccine Injury Clinic, George Washington
University Law School, in the amount of $29,424,32; and
b. $400.49 representing Ms. Green’s costs. The award shall be in the form
of a check made payable to Ms. Green for $400.49.
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.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
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