Johnson v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-931V Filed: August 19, 2019 * * * * * * * * * * * * * * LISA JOHNSON, * UNPUBLISHED * Petitioner, * * v. * Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Howard Scott Gold, Esq, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.

Kimberly Davey, Esq., United States Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1 Roth, Special Master: On October 1, 2014, Lisa Johnson (“Ms. Johnson” or “petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged as a result of an influenza (“flu”) vaccination she received on October 9, 2011, she developed polymyalgia rheumatica (“PMR”). Petition at 1, ECF No. 1. On March 18, 2019, the undersigned issued a fact ruling finding the onset of petitioner’s alleged injury occurred in March of 2012. Order, ECF No. 79. On April 11, 2019, petitioner filed a Motion for Dismissal Decision requesting that her case be dismissed. Motion, ECF No. 77. Petitioner’s claim was thereafter dismissed for insufficient proof. Decision, ECF No. 78.

The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the ruling 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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).

National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.

On May 5, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No. 80 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $40,239.31 (representing $30,471.00 in attorneys’ fees and $9,768.31 in costs). Fees App. at 1, 8-9. Pursuant to General Order No. 9, petitioner, through her counsel, warrants that she has not incurred any costs in pursuit of this litigation. Fees App. at 2 ¶8. Respondent responded to the motion on May 8, 2019, stating “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Response at 2-3, ECF No. 82. No reply was filed.

This matter is now ripe for consideration.

I. Legal Framework The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner was awarded compensation, she is entitled to a reasonable award of attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial estimate of a reasonable attorneys' fees” is calculated 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)). That product is then adjusted upward or downward based on other specific findings. Id. Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

II. Discussion A. Reasonable Hourly Rate A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees

to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec.

Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.3 Petitioner requests the following hourly rates for the work of her counsel, Mr. Howard Gold: $350.00 per hour for work performed in 2014, $360.00 per hour for work performed in 2015, $370.00 per hour for work performed in 2016, $380.00 per hour for work performed in 2017, $390.00 per hour for work performed in 2018, and $400.00 per hour for work performed in 2019.

Petitioner also requests the following paralegal hourly rates: $125.00 per hour for work performed in 2014-2015, and $135.00 per hour for work performed in 2016-2018. The rates requested herein have previously been found to be reasonable. See Pinelli v. Sec'y of Health & Human Servs., No. 17-704V, 2018 WL 6930457, at *1 (Fed. Cl. Spe. Mstr. Dec. 7, 2018); Pleasant v. Sec'y of Health & Human Servs., No. 17-610V, 2019 WL 1796127 (Fed. Cl. Spec. Mstr. Apr. 4, 2019).

Accordingly, no adjustment to the requested rates is necessary.

B. Hours Reasonably Expended Attorneys' fees are awarded for the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).

Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one- half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine OSM Attorneys’ Hourly Rate Fee Schedules can be accessed at: http://www.cofc.uscourts.gov/node/2914.

The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728– (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

The overall hours spent on this matter appear to be reasonable. The undersigned has reviewed the billing entries and finds that the billing entries adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable and Respondent has not identified any entries as objectionable either. Accordingly, Petitioner is entitled to a final award of attorneys’ fees in the amount of $30,471.00.

C. Reasonable Costs Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $9,768.31 in costs. Fees App. at 9. This amount is comprised of acquiring medical records, expert consultation fees, and travel expenses associated with the March 2018 fact hearing. Fees App. at 9; see also Order, ECF No. 56. The requested costs are largely reasonable in the undersigned’s experience and petitioner has provided adequate documentation supporting all costs. However, petitioner’s invoice claims $197.76 for March 26, 2018 Hilton Hotel fees when the supporting receipt shows $172.13 was spent. Accounting for this minor adjustment, petitioner shall be reimbursed $9,742.68 for attorneys’ costs.

III. Conclusion In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is GRANTED. I find that petitioner is entitled to an award of attorneys’ fees and costs as follows: 1) $40,213.68, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to petitioner and Mr. Howard Gold, 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 herewith.4

IT IS SO ORDERED.

s/Mindy Michaels Roth Mindy Michaels Roth Special Master Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.

Vaccine Rule 11(a).