Butler v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0561V

CAMILLA BUTLER, Chief Special Master Corcoran Petitioner, v. Filed: June 23, 2025

SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 11, 2021, Camilla Butler 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 she suffered a shoulder injury related to vaccine administration following an influenza vaccine administered on September 2, 2020.

Petition, ECF No. 1. On July 12, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 73.

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.

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 (2018).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $67,338.41 (representing $61,425.50 in fees plus $5,912.91 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed March 10, 2025, ECF No. 79. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred $36.70 in personal out-of-pocket expenses. ECF No. 80.

Respondent reacted to the motion on March 24, 2025, 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. 81. 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 the fees award must be reduced for redundant time billed for the review of status reports, correspondence cover letters, and other cursory documents prepared by another attorney. See, e.g., ECF No. 79 at 5-50 (entries dated 7/19/22; 7/27/22; 10/7/22; 2/1/23; 2/22/23; 3/6/23; 6/29/23; 8/31/23; 9/29/23; 9/29/23; 10/13/23; 11/13/23; 11/29/23; 12/29/23; 1/29/24; 2/28/24; 7/1/24; 7/15/24; 7/18/24; 11/5/24). I am aware that it is a common practice for Conway, Homer, P.C. to have several attorneys work on the same matter, even if one predominantly is responsible for hearings. In some instances, such as when preparing substantive documents like the petition, briefs, and settlement demands, it is reasonable to have another set of eyes review that document (and the Conway Homer, P.C. attorneys typically bill reasonable amounts that reflect their personal expertise, with more experienced counsel needing to spend less time on matters than newer attorneys).

However, it is not reasonable to have an attorney bill for time to review routine filings, such as status reports, joint notice not to seek review, and motions for enlargement of time, when those filings were prepared (and billed for) by another attorney. And this is not the first time I or other special masters have noted this particular issue concerning Conway, Homer, P.C. billing practices. See, e.g., Manetta v. Sec’y of Health & Hum.

Servs., No. 18-172V, 2020 WL 7392813, at *2 (Fed. Cl. Spec. Mstr. Nov 19, 2020); Lyons v. Sec’y of Health & Hum. Servs., No. 18-414V, 2020 WL 6578229 (Fed. Cl. Spec. Mstr.

Oct. 2, 2020). Accordingly, Petitioner will not receive fees for redundant efforts. This results in a reduction in the amount of fees to be awarded of $743.00.

Additionally, the billing records reveals several entries billed on tasks considered administrative in nature, 3 including excessive internal communications amongst staff regarding status of records in this case, deadlines, saving documents to casefile, scheduling phone calls, and point of contacts for coverage while traveling. But billing for such administrative tasks is not permitted in the Vaccine Program. See Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989) (noting that tasks “primarily of a secretarial and clerical nature ... should be considered as normal overhead office costs included within the attorneys’ fee rates.”). Tasks that are “purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). Attorneys, thus, may not separately charge for clerical or secretarial work because those charges are overhead for which the hourly rate accounts. See Bennett v. Dep’t of Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983). See also Floyd v. Sec'y of Health & Human Servs., No. 13-556V, 2017 WL 1344623, at *5 (Fed. Cl. Spec. Mstr. Mar. 2, 2017); (stating that secretarial tasks include “scheduling status conferences, organizing exhibits, preparing compact discs, revising a short motion after an attorney’s review, and filing documents through the CM/ECF system”); Silver v. Sec'y of Health & Human Servs., No. 16-1019V, 2018 U.S. Claims LEXIS 1058, at *15 (Fed. Cl. Spec. Mstr. July 31, 2018) (noting that “‘receiv[ing], review[ing,] and process[ing]’ records and court orders, and noting deadlines, are all clerical tasks.”). Accordingly, time incurred for such tasks will not be reimbursed. Application of the foregoing reduces the amount of fees to be awarded by $2,510.10.

Petitioner has otherwise provided supporting documentation for all claimed costs.

ECF No. 79 at 50-95. 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.

See billing entries dated: 2/5/21; 3/11/21; 4/2/21; 9/14/21; 12/13/21; 1/6/22; 1/13/22; 12/28/21; 4/10/22; 4/22/22; 4/25/22; 5/13/22; 5/18/22; 5/24/22; 6/16/22; 7/19/22; 7/27/22; 8/17/22; 8/29/22; 10/6/22; 10/26/22; 11/1/22; 11/30/22 (three entries); 2/17/23; 3/30/23; 5/17/23; 8/1/23; 9/15/23; 9/29/23; 10/13/23; 11/2/23 (two entries); 11/16/23; 11/28/23; 12/27/23; 2/7/24 (two entries); 2/26/24; 2/28/24; 3/14/24; ECF No. 79 at 8-45.

Petitioner is awarded attorneys’ fees and costs in the total amount of $64,122.01 (representing $58,172.40 in fees, plus $5,912.91 in costs, plus $36.70 representing Petitioner’s out-of-pocket expenses) 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. 4 IT IS SO ORDERED.

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

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