Rodrigues v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-1785V

Filed: November 26, 2024

Special Master Horner TIMOTHY RODRIGUES,

Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Michael G. McLaren, Black McLaren Jones Ryland & Griffee, Memphis, TN, for petitioner.

Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On September 1, 2021, petitioner filed a petition under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. (2012) (“Vaccine Act”).2 (ECF No. 1.) Petitioner alleged that he suffered bullous pemphigoid and/or small fiber neuropathy as a result of an August 29, 2019 tetanus diphtheria and acellular pertussis (“TDaP”) vaccination. (Id.) A decision was issued on March 5, 2024, awarding damages based on the parties’ stipulation. (ECF No. 41.) On April 25, 2024, petitioner filed a final motion for attorneys’ fees and costs. (ECF No. 46.) Petitioner requests a total of $169,814.10, including $117,383.00 for attorneys’ fees and $52,431.10 for costs. (Id. at 7.)

On April 26, 2024, respondent filed a response to petitioner’s motion. (ECF No. 47.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a request by a petitioner for an award of attorneys’ fees and costs.” (Id. at 1.) Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” (Id. at 2.) Respondent requests “that the [c]ourt exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” (Id. at 3.)

It is “well within the special master’s discretion” to determine the reasonableness of fees. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines ex rel. Sevier v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys’ fees and costs.”). The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs, 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348.

Applications for attorneys’ fees must include contemporaneous and specific billing records that indicate the work performed and the number of hours spent on said work. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Such applications should not include hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both ‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. Not only must any request for reimbursement of attorneys’ fees be reasonable, so also must any request for reimbursement of costs.”), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

I have reviewed the billing records submitted with petitioner’s request. (ECF No. 46-2.) Based on my experience and considering that respondent has not raised any objection with particularity (see Vaccine Rule 13(a)(3)), the request appears reasonable and the undersigned finds no cause to reduce the requested hours or rates.3 I have also reviewed the cost records submitted with petitioner’s request. (ECF No. 46-2.) The undersigned finds the costs to be reasonable.

Accordingly, the undersigned awards a lump sum of $169,814.10 in the form of a check jointly payable to petitioner and petitioner’s counsel, Michael G. McLaren, Esq.

The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master is included in future requests, it will need to be substantiated with an appropriate argument favoring the practice.