Fisher v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 22-0877V

JULIE FISHER, Chief Special Master Corcoran Petitioner, v. Filed: April 17, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

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

Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On August 10, 2022, Julie Fisher 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 right-sided Table shoulder injury related to vaccine administration as the result of an influenza vaccine received on September 15, 2021. Petition at 1. On December 21, 2023, I issued a decision awarding compensation based on the Respondent’s proffer. ECF No. 29.

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 (2018).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $14,262.46 (representing $13,633.50 for attorney’s fees, plus $628.96 in costs).

Petitioner’s Application for Attorney’s Fees and Costs (“Motion”) filed January 5, 2024, ECF No. 34. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-pocket expenses. ECF No. 34 - 3.

Respondent reacted to the motion on January 19, 2024, noting 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. 35. Petitioner filed a reply on January 26, 2024, asserting “that her Petition for fees and costs is reasonable, well supported, and should be granted.” ECF No. 37 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 $392.00 per hour for time billed in 2022, and $413.00 per hour for work performed in 2023. ECF No. 34 at 3. For paralegal time, Petitioner requests the rate of $177.00 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 $1.70. 4

ATTORNEY COSTS Petitioner requests $628.96 in overall costs. ECF No. 34 at 3. 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 $14,260.76 (representing $13,631.80 for attorney’s fees and $628.96 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Glen Sturtevant, Jr. In the absence

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