Budde v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1012V (not to be published)

KATHLEEN BUDDE, Chief Special Master Corcoran Petitioner, v. Filed: October 29, 2021

SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs; Hourly Rate; Paralegal Time Respondent.

Stefan Bjorn Feidler, Anastopoulo Law Firm, Charleston, SC, for Petitioner.

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On July 15, 2019, Kathleen Budde 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 she suffered Guillain-Barré syndrome which meets the definition for Table GBS and was caused-in-fact by the influenza vaccine she received on October 10, 2018. (Petition at 1 ¶¶ 2, 10, 12). On July 6, 2021, a decision was issued awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 51).

Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 August 9, 2021 (ECF No. 57), requesting a total award of $13,241.24 (representing $12,165.00 in fees and $1,076.24 in costs). In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 60- 2). Respondent reacted to the motion on August 10, 2021, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. (ECF No. 58). Petitioner did not file a reply.

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. 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. Hourly Rates Petitioner requests I endorse the rate of $300 per hour for all time billed by attorney Stefan B. Feidler. (ECF No. 57 at 2). Mr. Feidler has been a licensed attorney since 2018, 3 placing him in the range of attorneys with less than four years’ experience. 4 In addition, this is Mr. Feidler’s first case in the Program. It is therefore improper for him to receive rates established for comparably experienced counsel who also have lengthy experience in the Program. See McCulloch v. Health and Human Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and community at large).

Accordingly, I find it reasonable to reduce the requested rates for Mr. Feidler to the following: $235 per hour for 2018; $250 per hour for 2019; and $275 per hour for 2020.

The requested rate of $300 per hour will be awarded for time billed in 2021. This reduces the amount to be awarded in fees by $1,462.00. 5 B. Paralegal Tasks at Attorney Rates Fees to be awarded in this case must also be reduced to account for work billed for 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 &

This inf ormation was obtained f rom an outside source. https://www.avvo.com/attorneys/stefan-feidler- 4987371.html These rates are derived f rom the undersigned’s application of the OSM Attorneys’ Forum Hourly Rate Schedules and are available on the U.S. Court of Federal Claims website at www.cofc.uscourts.gov/node/2914.

This amount is calculated as follows: ($300 - $235 = $65 x 5.8 hrs = $377) + ($300 - $250 = $50 x 13 hrs = $650) + ($300 - $275 = $25 x 17.4 hrs = $435) = $1,462.00.

Human Servs., No. 99-535, 2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008).

Mr. Sullivan billed 4.51 hours on tasks that are more properly characterized as paralegal tasks, including requesting medical records and filing documents. Examples of these (which are not an exhaustive list) include the following: • May 29, 2019 “Reviewed email from Ms. Wham re medical providers (0.32); prepared releases for same (0.30); finalized releases (0.23); sent same to medical providers (0.01)”; • September 18, 2019 “Filed lawsuit and paid filing fee (0.17); reviewed and prepared documents for service (0.15); • September 30, 2019 “filed Statement of Completion”; and • January 22, 2021 “prepared supplemental exhibit list and filed same (0.17).

(ECF No. 39-1 at 1, 3 and 5).

I shall reduce Mr. Sullivan’s rate for these tasks to $145 per hour, which is comparable to what a paralegal would receive. This further reduces the awardable attorney fees by $508.70. 6 ATTORNEY COSTS Petitioner requests $1,076.24 in overall costs. (ECF No. 57 at 3). This amount is comprised of obtaining medical records, postage and the Court’s filing fee. 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, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $11,270.54 (representing $10,194.30 in fees and $1,076.24 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.

This amount consists of the already reduced rates as follows: ($250 - $145 = $105 x 2.86 hrs = $300.30) + ($265 - $145 = $120 x 1.13 = $135.60) + ($285 - $145 = $140 x 0.52 hrs = $72.80) = $508.70.

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

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.