Thomas v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1628V
(not to be published)
************************* Special Master Corcoran
ARMAND THOMAS, *
*
Petitioner, * Filed: December 18, 2017
*
v. * Decision; Final Fees and Costs.
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************
Michael McLaren, Black McLaren, Memphis, TN, for Petitioner.
Ann Martin, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING A FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On December 9, 2016, Armand Thomas filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleges that he
suffered from Guillain-Barré syndrome as a result of receiving the influenza vaccine on December
12, 2013. The parties ultimately agreed that the issues before them could be informally resolved
and submitted a stipulation for damages on October 19, 2017, which I adopted by decision the next
day (ECF No. 19).
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means 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 Decision in its present form will be available.
Id
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).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated
November 28, 2017. See Motion for Attorney’s Fees, dated Nov. 28, 2017 (ECF No. 24) (“Fees
App.”). Petitioner requests reimbursement of attorney’s fees and costs in the total amount of
$23,503.34 (representing $20,757.00 in attorney’s fees, plus $2,746.34 in costs). Id. at 1. In
accordance with General Order No. 9, Petitioner indicated that he has not incurred any costs related
to the matter. Id. at 42. Respondent filed a document reacting to the fees request on December 15,
2017, stating that he is satisfied that the statutory requirements for an award of attorney’s fees and
costs are met in this case, but deferring to my discretion the determination of the amount to be
awarded. ECF No. 25 at 2-3.
Determining the appropriate amount of an award of reasonable attorney’s fees is a two-part
process. The first part involves application of the lodestar method – “multiplying the number of
hours reasonably expended3 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)). The second part involves adjusting the lodestar calculation up or down to
take relevant factors into consideration. Avera, 515 F.3d at 1348. This standard for calculating a
fee award is considered applicable in most cases where a fee award is authorized by federal statute.
Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).
Petitioner asks that the three attorneys and paralegals from the Black McLaren firm who
worked on this matter be reimbursed at varying rates for work performed from 2016-2017. I have
previously found that Black McLaren is entitled to forum rates. See Wilson v. Sec’y of Health &
Human Servs., No. 15-521V, slip op. (Mar. 29, 2017); Pancoast v. Sec’y of Health & Human
Servs., No. 15-718V, 2016 WL 7574815, at *3 (Fed. Cl. Spec. Mstr. Nov. 16, 2016). Other special
masters have awarded forum rates to these attorneys as well. See, e.g., Henry v. Sec’y of Health &
Human Servs., No. 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov. 4, 2016). The hourly
3
An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)).
2
rates I awarded in Wilson and Pancoast to the attorneys who worked on this matter, as well as their
law clerks, are the same as those requested herein, and I will likewise award them.
The hours expended on this matter also appear to be reasonable, and Respondent did not
identify any entries as objectionable. The requested litigation costs to obtain medical records, pay
the filing fee, and to travel to meet with the client are similarly reasonable, and will be awarded.
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of interim fees awards, and based on the foregoing, I GRANT Petitioner’s Motion for Final
Attorney’s Fees and Costs, and award a total of $23,503.34, in the form of a check jointly payable
to Petitioner and Petitioner’s counsel, Mr. Michael G. McLaren, Esq. 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.4
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
4
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.
3