Von Almen v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 23-0212V

LEWIS VON ALMEN,

Chief Special Master Corcoran Petitioner, Filed: March 6, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner. Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On February 13, 2023, Lewis Von Almen 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 alleged that he suffered from Guillain-Barré syndrome a Table injury, as a result of an influenza vaccine he received on October 12, 2020. Petition, ECF No. 1. On July 11, 2024, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 35.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $36,239.82 (representing $33,909.50 in fees plus $2,330.32 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed October 14, 2024, ECF No. 40. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred no personal out- of-pocket expenses. ECF No. 40.

Respondent reacted to the motion on October 15, 2024, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-4, ECF No. 41. Petitioner filed no reply thereafter.

I have reviewed the billing records submitted with Petitioner’s request. 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, I find a minor reduction in the amount of fees to be awarded appropriate, for the reasons stated below.

After reviewing the billing records submitted with Petitioner’s request, I find that several of the tasks performed by attorneys in this case 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). Although these billing entries are reasonable, they must be charged at a reduced rate comparable to that of a paralegal. Application of the foregoing results in a reduction in the amount of fees to be awarded herein by $425.60. 4

Petitioner has otherwise provided supporting documentation for all claimed costs. ECF No. 40-3. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them 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 in part, Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded attorneys’ fees and costs in the total amount of $35,814.22 (representing $33,483.90 in fees plus $2,330.32 in costs) to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement. 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. 5 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master