United States Court of Federal Claims, 2023

Delgado v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided December 5, 2023 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-502V

MARTHA DELGADO,

Chief Special Master Corcoran Petitioner,

v. Filed: October 25, 2023 SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner. Amanda Pasciuto, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 11, 2021, Martha Delgado 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 resulting from an influenza vaccine she received on September 10, 2020. Petition, ECF No. 1. On August 2, 2023, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 44.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $31,164.77 (representing $30,450.70 in attorney’s fees, and $714.07 in costs). Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed Aug. 17, 2023, ECF No. 48. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. Id. at 3.

Respondent reacted to the motion on August 31, 2023, 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. Respondent’s Response to Motion at 2-3, ECF No. 49. 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 for successful claimants. Section 15(e). Fees requests must 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 hourly rates for attorneys performing work in this matter as follows:

2020 2021 2022 2023 Jonathan Svitak $280 $310 $350 $380 Patrick Anderson $315 $365 $415 X

The hourly rates requested for Mr. Svitak for his time billed in the 2020-23’ timeframe are reasonable and consistent with prior determinations, and shall therefore be awarded herein. The rates requested for Mr. Patrick Anderson, however, require adjustment.

Mr. Anderson was previously awarded the rate of $315 per hour for all time billed in the 2020-22 timeframe, less than what is being requested herein. See Miller v. Sec’y of Health & Human Servs., No. 21-0570V, Slip. Op. 41, (Fed. Cl. Spec. Mstr. Sept. 22, 2023). I find no reason to deviate from Mr. Anderson’s previously awarded rates. Accordingly, I reduce Mr. Anderson’s rates be consistent with what he has been previously awarded for the given timeframe. This reduces the amount of fees to be awarded by $2,865.00. 3

CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $28,299.77 (representing $27,585.70 in attorney’s fees and $714.07 in attorney’s costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Jonathan J. Svitak. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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 inf ormation, 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 f rom 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 (2018). 3 This amount consists of ($415 - $315 = $100 x 11.70 hrs) + ($365 - $315 = $50 x 33.90 hrs) = $2,865.00. 4 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.

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