Vue v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0024V (not to be published)

PAOSHOUA VUE, Chief Special Master Corcoran Petitioner, v. Filed: December 15, 2021

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

Jessica Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

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

DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 8, 2020, Paoshoua Vue 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 a shoulder injury related to vaccine administration after an influenza vaccination on October 26, 2018. (Petition at 1, 4). On July 20, 2021, a decision was issued awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 32).

Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am required to post it on the United States Court of Federal Claims' website in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

2 National 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 October 5, 2021, (ECF No. 37), requesting a total award of $17,624.50 (representing $17,003.20 in fees and $621.30 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. 37- 3). Respondent reacted to the Motion on October 8, 2021, 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 resolution of the amount to be awarded to my discretion. (ECF No. 38). On October 11, 2021, Petitioner filed a reply requesting a full award of fees and costs. (ECF No. 39).

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. 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 Petitioner requests I endorse the following rates for attorney Jessica Olins: $199 for 2019; $225 per hour for 2020; and $266 per hour for time billed in 2021. (ECF No. 37- at 12). The rates for Ms. Olins have been previously reviewed in other cases and deemed appropriate, and shall be awarded in this matter as well. All time billed to the matter shall also be awarded.

Additionally, Petitioner is requesting the rate of $175 per hour for time billed in 2020 for a “Research Assistant”. (ECF No. 37-1 at 12). As this time was not billed by an attorney, and no supporting documentation was provided to support this rate, it will be assessed in the range for that of a paralegal. The requested rate exceeds the rates for paralegals on the OSM Attorney’s Forum Hourly Rate Schedule. 3 I shall reduce the rate for the research assistant to the rate of $150 per hour (although I will allow all time billed by this individual to be awarded). This reduces the total fees award by the amount of $12.50. 4 ATTORNEY COSTS Petitioner requests $621.30 in overall costs. (ECF No. 37-2). This amount is comprised of obtaining medical records, shipping fees and the Court’s filing fee. I have reviewed all of the requested costs and find them to be reasonable and shall award them 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 $17,612.00 (representing $16,990.70 in fees and $621.30 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.

Petitioner requests check be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida, 34236. In the absence of a timely-filed motion

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 consists of $175 - $150 = $25 x 0.50 hrs = $12.50. for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision. 5 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.