Kelly v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0914V

BARBARA KELLY, Chief Special Master Corcoran Petitioner, v. Filed: May 24, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Glen Howard Sturtevant, Jr., Rawls Law Group, Richmond, VA, for Petitioner.

Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On February 11, 2021, Barbara Kelly filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. 2 (the “Vaccine Act”). On October 29, 2020, Petitioner received an influenza (“flu”) vaccine, which vaccine is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a).

Petitioner alleges that she sustained a left shoulder injury related to vaccine administration (“SIRVA”) within the time period set forth in the Table. On January 10, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 48.

1Because 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 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 references 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, requesting an award of $20,881.56 (representing $19,641.10 in fees plus $1,240.46 in costs). Petitioner’s Application for Attorneys’ Fees (“Motion”) filed January 22, 2024, ECF No. 52. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. ECF No. 52-3.

Respondent reacted to the motion on January 22, 2024, 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, 3 n.2, ECF No. 53. Petitioner filed a reply on January 23, 2024, stating the request for fees is reasonable and should be awarded in full. ECF No. 54.

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). 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 compensation for attorney Glen Sturtevant at the rate of $372.00 per hour for time billed in 2021, $392.00 per hour for time billed in 2022, $413.00 per hour for work performed in 2023 and $413.00 per hour for work performed in 2024.

ECF No. 34 at 3. For paralegal time, Petitioner requests the rate of $172.00 per hour for time billed in 2021, $177.00 per hour for time billed in 2022, $186.00 per hour for time billed in 2023, and $198.00 per hour for time billed in 2024.

The rates for time billed between 2022-23 have previously been awarded, but the requested paralegal rate for 2024 exceeds the Vaccine Program’s published range for paralegals for that year. 3 I shall therefore reduce the 2024 paralegal rate to $197.00 per hour. This reduced the fees to be awarded by the amount of $4.50.

ATTORNEY COSTS Petitioner requests $1,240.46 in overall costs. ECF No. 52 - 2. This amount is comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have reviewed the requested costs and find them to be reasonable, and they shall be awarded in full.

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 $20,877.06 (representing $19,636.60 in fees plus $1,240.46 in costs) as a lump sum in the form of a check jointly payable to Petitioner’s counsel, Glen Howard Sturtevant, Jr. In the absence of a timely-filed

3 These rates are derived from the 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. 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

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