Worthy v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1104V (not to be published)

LOUIE WORTHY, Chief Special Master Corcoran Petitioner, v. Filed: September 14, 2020

SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs

Respondent.

John P. Valente, III, The Valente Law Group, Crofton, MD, for Petitioner.

Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On July 30, 2018, Louie Worthy filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré syndrome and paralysis caused- in-fact by the influenza vaccine he received on September 9, 2016. (Petition at 1, ¶¶ 2, 8). On June 10, 2020, a decision was issued awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 41).

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means the Decision 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, I agree that the identified material fits within this definition, I will redact such material from public access.

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Petitioner has now filed a motion for attorney’s fees and costs, dated July 14, 2020, (ECF No. 45), requesting a total award of $32,726.89 (representing $23,522.65 in fees and $9,204.24 in costs). In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he not incurred no out-of-pocket expenses. (ECF No. 48-1).

Respondent reacted to the motion on July 27, 2020, stating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring calculation of the amount to be awarded to my discretion. Petitioner did not file a reply thereafter I have reviewed the billing records submitted with Petitioner’s requests, and find a reduction in the amount of fees to be awarded appropriate, for the reason listed below.

ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should 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. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (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 (2011).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.

Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.

ATTORNEY FEES

A. Administrative Time Upon review of the billing records submitted, it appears that a number of entries are for tasks considered clerical or administrative. In the Vaccine Program, secretarial work “should be considered as normal overhead office costs included within the attorney’s fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.”

Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). A total of 1.9 hours was billed on tasks considered administrative including, scanning documents, creating binders, and mailing documents. Examples of the tasks include: • January 5, 2017 (1.75 hrs) “Create medical records binder”; • July 9, 2018 (2 hrs) “Paginated and scanned all Exhibits to be filed”; • November 27, 2018 (4 hrs) “Refile/Paginate Exhibits 2,071 pages to comply with Court’s order”; and • October 9, 2019 (2 hrs) “Paginated and scanned all Exhibits to be filed.”

Because the Program does not reimburse such administrative tasks, I will reduce the amount of fees to be awarded by $336.50. 3 ATTORNEY COSTS Petitioner is requesting $9,204.24 in overall costs, including but not limited to medical records, shipping and copying costs. (ECF No. 44-2 at 2). I have reviewed all the requested costs and find them to be reasonable, l award the requested amount in full.

CONCLUSION This amount consists of ($290 x 0.6 hrs = $174) + ($125 x 1.3 hrs = $162.50) = $336.50.

The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $32,390.39 (representing $23,186.15 in fees and $9,204.24 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision. 4 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.