United States Court of Federal Claims, 2025

Buck v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided January 27, 2025 · Brian H. Corcoran

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-1301V

MARTHA BUCK, Chief Special Master Corcoran Petitioner, v. Filed: December 27, 2024

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

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

DECISION ON ATTORNEY’S FEES AND COSTS1 On August 27, 2019, Martha Buck 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 (“SIRVA”) resulting from an influenza (“flu”) vaccine received in her left deltoid on December 24, 2017. Petition at 1. On November 17, 2023, I issued a decision awarding damages to Petitioner, based on the Respondent’s proffer. ECF No. 41.

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 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.

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 $39,740.35 (representing $38,380.50 for attorney’s fees, $1,353.15 for attorney’s costs, and $6.70 for Petitioner’s out-of-pocket litigation costs). Petitioner Application for Attorneys’ Fees, filed May 20, 2024, ECF No. 46. In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred $6.70 in out-of-pocket expenses. Id. at 2.

Respondent reacted to the Motion on May 21, 2024, stating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs have been met in this case, but deferring resolution of the amount to be awarded to my discretion. ECF No. 48.

On May 22, 2024, Petitioner filed a reply, reiterating her previous request. ECF No. 49.

Having reviewed of the billing records submitted with Petitioner's requests, I find reductions in the amount of fees and costs to be awarded appropriate, for the reasons listed below.

ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs to 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 The rates requested for work performed through the end of 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted.

However, a few of the tasks performed by Ms. Durant are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum.

Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount of fees to be awarded by $315.20.4 Regarding the time billed, I deem the total amount of time devoted to briefing entitlement to be excessive – although not egregiously so. See Petitioner’s Motion for a Ruling on the Record, filed May 13, 2022, ECF No. 30; Petitioner’s Reply to Respondent’s Response to Petitioner’s Motion for Ruling on the Record, filed Aug. 3, 2022, ECF No. 34. Petitioner’s counsel expended approximately 19.8 hours drafting the entitlement brief and 10.7 hours drafting the reply brief, totaling 30.55 hours. ECF No. 46-1 at 6-7.

It is unreasonable for counsel to spend so much time briefing the issue of entitlement in this case, where the issues presented are not complex. I have identified numerous cases (which may reasonably be compared to time spent in this matter), 6 in These entries, drafting basic documents such as an exhibit list, cover sheet, and statement of completion, are dated as follows: 9/9/19 (two entries), 1/18/22 (two entries), and 5/13/22. ECF No. 46-1 at 3, 5-6.

4 This amount consists of ($380 - $156) x 0.7 hrs. + ($441 - $177) x 0.6 hrs. = $315.20. 5 This total is calculated as follows: 23.0 hours billed on 4/27/22, 4/29/22, 5/4/22, 5/5/22, 8/1/22, and 8/2/22, by Richard Amada, at a rate of $420; and 7.5 hours billed on 5/13/22, 7/27/22, and 8/3/22, by Leah Durant at a rate of $441. ECF No. 46-1 at 6-7. 6 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). which attorneys have accomplished this task in about half the time. 7 See, e.g., Fletcher v. Sec’y of Health & Hum. Servs., No. 20-0127V (Apr. 25, 2024) (12.7 and 9.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Lamine v. Sec’y of Health & Hum. Servs., No. 20-1560V (Mar. 27, 2024) (8.9 and 7.2 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Davenport v. Sec’y of Health & Hum. Servs., No. 20-0206V (Mar. 25, 2024) (16.5 and 2.6 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Graczyk v. Sec’y of Health & Hum. Servs., No. 21-0376V (Feb. 9, 2024) (5.8 and 8.3 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Sisneros v. Sec’y of Health & Hum. Servs., No. 20-2070V (Feb. 8, 2024) (0.8 and 10.5 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); Strand v. Sec’y of Health & Hum. Servs., No. 20-0365V (Feb. 5, 2024) (7.9 and 7.2 hours billed for drafting an entitlement brief and a responsive entitlement brief, respectively); Griswold v. Sec’y of Health & Hum. Servs., No. 19-1674V (May 30, 2024) (5.0 and 2.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively); McCallum v. Sec’y of Health & Hum. Servs., No. 19-1991V (May 19, 2023) (8 hours billed for drafting an entitlement brief); Weso v. Sec’y of Health & Hum. Servs., No. 19-0596V (May 16, 2024) (6.0 and 1.1 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively).

The circumstances of this case did not warrant devoting so much time to briefing.

The only area of dispute involved pain onset. See Respondent’s Rule 4(c) Report, filed Oct. 14, 2021, at 6-7, ECF No. 24; 42 C.F.R. § 100.3(c)(10)(ii) (2017).

Of course, having prevailed in this case, a fees award is generally appropriate.

ECF No. 44. But the Act permits only an award of a reasonable amount of attorney’s fees.

Accordingly, I will reduce the sum to be awarded for entitlement briefing (a total of 30.5 hours, or $12,967.50) by ten percent.8 Such an across-the-board reduction (which I am empowered to adopt) 9 fairly captures the overbilling evidenced by this work, without These decisions can be found on the United States Court of Federal Claims website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Mar. 24, 2024).

8Because the amount of excessive hours was not as egregious as in previous cases, I will reduce the hours billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs., No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023).

9 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017); Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health & Hum. Servs., 86 Fed. Cl. 201, 214 (2009). requiring me to act as a “green eye-shaded accountant” in identifying with specificity each objectionable task relevant to this one sub-area of work performed on the case. This results in a reduction of $1,296.75.10 ATTORNEY AND PETITIONER COSTS Petitioner has provided supporting documentation for all claimed costs. ECF No. 46-2. And Respondent offered no specific objection to the rates or amounts sought. ECF No. 48. Thus, I find the amount of costs sought to be reasonable.

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. Petitioner is awarded the total amount of $38,128.4011 as follows: • A lump sum of $38,121.70, representing reimbursement in the amount of $36,768.55 for attorney’s fees and $1,353.15 for attorney’s costs, in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Leah VaSahnja Durant; and • A lump sum of $6.70, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

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.12

10 This amount is calculated as follows: 23.0 hrs. x $420 x .10 + 7.5 x $441 x .10 = $1,296.75. 11 This amount is intended to cover all legal expenses incurred in this matter.

This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.

Furthermore, Section 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Hum. Servs., 924 F.2d 1029 (Fed. Cir. 1991).

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

IT IS SO ORDERED.

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

Case-law data current through December 31, 2025. Source: CourtListener bulk data.