Finch v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: December 23, 2020

* * * * * * * * * * * * * * MARY FINCH, * UNPUBLISHED

* Petitioner, * No. 18-1680V

* Special Master Gowen v. *

* Attorneys’ Fees and Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * * Jeffrey S. Pop., Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Heather L. Pearlman, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On September 3, 2020, Mary Finch (“Petitioner”) filed a motion for attorneys’ fees and costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 35). For the reasons discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $11,749.71.

I. Procedural History

On October 31, 2018, Mary Finch, (“Petitioner”) filed a petition in the National Vaccine Injury Compensation Program.2 Petitioner filed a petition in the National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving an influenza vaccine on November 14, 2017, she developed a shoulder injury related to vaccine administration (“SIRVA”). Petition (ECF No. 1). On April 22, 2020, petitioner filed a motion for a decision dismissing the petition and on April 23, 2020, I issued my decision dismissing the petition for insufficient proof. (ECF No. 31).

On September 3, 2020, Petitioner filed a motion for final attorneys’ fees and costs. Petitioner requests compensation in the total amount of $11,749.71, representing $10,892.20 in attorneys’ fees and $857.51 in costs. Fees App. at 15. Pursuant to General Order No. 9, Petitioner warrants she has not personally incurred any costs in pursuit of her claim. Fees App. Ex. 4. Respondent reacted to the fees motion on September 17, 2020, stating that “Respondent defers to the Court to determine whether the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 3 (ECF No. 36). Petitioner did not file a reply thereafter.

The matter is now ripe for adjudication.

II. Analysis

Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs for a petition that does not result in an award of compensation but was filed in good faith and supported by a reasonable basis. § 300aa–15(e)(1). Here, although the petition was eventually dismissed, the undersigned does not doubt that it was filed in good faith, and there was a reasonable basis for the claim to last as long as it did. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees Petitioner requests the following hourly rates for the work of her counsel at Jeffrey S. Pop and Associates: for Mr. Jeffrey S. Pop, $420.00 per hour for work performed in 2018, $454.00 per hour for work performed in 2019, and $470.00 per hour for work performed in 2020; for Ms. Alexandra Pop, $225.00 per hour for work performed in 2018, $262.00 per hour for work performed in 2019, and $295.00 per hour for work performed in 2020. Fees App. at 5-6. The requested rates are reasonable and consistent with what counsel has previously been awarded for Vaccine Program work.

Turning next to review of the submitted billing statement, I find that the overall hours spent on this matter to be reasonable. The entries are reasonable and accurately describe the work being performed and the length of time it took to perform each task. Respondent also has not identified any particular entries as being objectionable. Therefore, Petitioners are entitled to final attorneys’ fees of $10,892.20.

b. Attorneys’ Costs Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total attorneys’ costs in the amount of $857.51. This amount is comprised of acquiring medical records, postage, and the Court’s filing fee. These costs appear reasonable and Petitioner has provided adequate documentation supporting them. Petitioner is therefore awarded final attorneys’ costs of $857.51.

III. Conclusion In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as follows:

Attorneys’ Fees Requested $10,892.20 (Reduction of Fees) - Total Attorneys’ Fees Awarded $10,892.20 Attorneys’ Costs Requested $857.51 (Reduction of Costs) - Total Attorneys’ Costs Awarded $857.51 Total Attorneys’ Fees and Costs $11,749.71

Accordingly, I award a lump sum in the amount of $11,749.71, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and her attorney, Mr. Jeffrey S. Pop.3

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/Thomas L. Gowen Thomas L. Gowen Special Master