Einer v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1857V (not to be published)

RONALD S. EINER, Chief Special Master Corcoran Petitioner, v. Filed: February 24, 2021

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

Respondent.

M. Jalie Meinecke, Meinecke & Sitz, Cody, WY, for Petitioner.

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 4, 2018, Roland Einer 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 as a result of an influenza vaccine received on November 1, 2016. (Petition at 1). On October 29, 2020, a decision was issued awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 33).

Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am required to post it on the United States Court of Federal Claims' website in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.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences 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 December 8, 2020, (ECF No. 38), requesting a total award of attorney fees in the amount of $13,365.00 3. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he incurred out-of-pocket expenses in the amount of $322.38. (ECF No. 41). Respondent reacted to the motion on December 9, 2020 indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring the determination of the amount to be awarded to my discretion. (ECF No. 40). 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 reasons 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

Petitioner submitted this revised amount of attorney fees incurred in the General Order No. 9. (ECF No. 41). practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.

ATTORNEY FEES A. Hourly Rates Petitioner requests compensation for his attorney, M. Jalie Meinecke, at the rate of $300.00 for all time billed between 2018 – 2020. (ECF No. 38 at 1-5). It appears that Ms. Meinecke has been a licensed attorney in Wyoming since 2000. (ECF No. 42-3 at 1).

In light of her overall experience and taking into account the OSM guidelines applied to attorney rates, the requested rate is reasonable and I award it herein.

I find it necessary however, to reduce Ms. Meinecke’s rate when associated with work billed to paralegal tasks. Attorneys may be compensated for paralegal-level work, but only at a rate that is comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec’y of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health & Human Servs., 99-382V, 2009 WL 3319818, at *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535, 2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008).

Ms. Meinecke billed 9.9 hours on tasks that are more properly characterized as paralegal tasks, including requesting medical records, and filing documents. Examples of these entries include: • September 19, 2018 (1.5 hrs) “Prepare engagement letter and fee agreement”; • October 16, 2018 (2.5 hrs) “Itemize billing statements for Einer and prepare spreadsheet”; • February 13, 2019 (0.50 hrs) “Prepare letter requesting records to Leaveau, Lowther, Powell Valley Healthcare and Rashkow”; and • November 20, 2019 (0.70 hrs) “Prepare fourth notice of filing and exhibits.” (ECF No. 38-1 at 2-3).

I shall reduce Ms. Meinecke’s rate for these tasks to $125 per hour, which is comparable to that of a paralegal. This reduces the awardable attorney fees in the amount of $1,732.50. 4 B. Non-Compensable Billing Ms. Meinecke billed a total of 1.90 hours for time spent on tasks which are not reimbursable. In particular, Petitioner requests fees associated with Ms. Meinecke’s bar admission to the Court of Federal Claims. However, “it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his client to learn about an area of law in which he is unfamiliar. If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr.

July 13, 2007).

The Program does not pay fees associated with the Court’s bar admission process.

I will therefore deny reimbursement for all such fees, reducing the amount to be awarded for attorney’s fees by $570.00. 5 ATTORNEY COSTS Petitioner requests $322.38 in costs incurred by Petitioner. (ECF No. 41). This amount is comprised of shipping costs and copies. I have reviewed all of the requested costs and find them to be reasonable and shall award it in full.

CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Accordingly, Petitioner is awarded the total amount of $11,385.58 6 as follows: This amount consists of $300 - $125 = $175 x 9.9 hrs = $1,732.50.

This amount consists of $300 x 1.9 hrs = $570.00.

This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as f ees f or legal services rendered.

Furthermore, Section 15(e)(3) prevents an attorney f rom charging or collecting fees (including costs) that • A lump sum of $11,063.50, representing reimbursement for attorney’s fees and costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel; and • A lump sum of $322.38, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

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. 7 IT IS SO ORDERED.

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

would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).

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