Reese v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1117V
(not to be published)
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BARRY REESE, *
* Special Master Corcoran
*
Petitioner, * Filed: April 2, 2018
*
v. * Final Attorney’s Fees and
* Costs.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner,
Mallori Openchowski, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1
On September 8, 2016, Barry Reese filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”),2 alleging that as a result
of receiving the influenza vaccine on September 30, 2013, he developed acute disseminated
encephalomyelitis. See Petition at 1, filed Sept. 8, 2016 (ECF No. 1). The parties ultimately agreed
that the issues before them could be informally resolved and submitted a stipulation for damages
on November 20, 2017, which I adopted by decision that same day (ECF Nos. 28-29).
1
Although I have not designated this Decision for publication, because it contains a reasoned explanation for my
actions in this case, it will nevertheless be posted on the United States Court of Federal Claims website, in accordance
with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B),
however, the parties may object to the published Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public.
Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
Petitioner has now filed a motion requesting final attorney’s fees and costs. See Motion for
Attorney’s Fees, dated Mar. 22, 2018 (ECF No. 34) (“Fees App.”). Petitioner requests
reimbursement of attorney’s fees and costs in the total amount of $45,738.70 (representing
$42,859.05 in attorney’s fees, plus $2,879.65 in costs). Id. at 1-2. In accordance with General
Order No. 9, Petitioner indicated that his only expense was $7.85. See General Order No. 9, dated
Mar. 22, 2018 (ECF No. 35). Respondent filed a document reacting to the fees request on March
28, 2018, stating that he is satisfied that the statutory requirements for an award of attorney’s fees
and costs are met in this case, but deferring to my discretion the determination of the amount to be
awarded. ECF No. 36 at 2-3.
Vaccine Program attorneys are entitled to a fees award in successful cases. Determining
the appropriate amount of that award is a two-part process. The first part involves application of
the lodestar method – “multiplying the number of hours reasonably expended3 on the litigation
times a reasonable hourly rate.” Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-
48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves
adjusting the lodestar calculation up or down to take relevant factors into consideration. Avera,
515 F.3d at 1348. This standard for calculating a fee award is considered applicable in most cases
where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37
(1983).
Petitioner’s fee application includes attorney billing records that indicate that the work
performed in this case to has been divided among several Homer Firm attorneys—Mr. Pepper, Ms.
Ciampolilo, Ms. Daniels, and Mr. Homer—plus some Homer Firm paralegals and law clerks. See
generally, Fees App., Tab A. Petitioner’s Fees Application requests compensation for the Homer
Firm, in the total sum of $42,859.05, for work performed from January 2015 to March 2018, at
hourly rates of $297 for Mr. Pepper, $307 for Ms. Ciampolilo, $280-$294 for Ms. Daniels,
3
An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.
In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)).
2
$204.50-$419 for Mr. Homer, $145-$148 for law clerks, and $135-$138 for the paralegals. Fees
App., Tab A. Petitioner also seeks to recover $2,879.65 in costs, including the initial filing fee,
document collection, and photocopying costs. Fees App., Tab B.
I have determined in prior cases that the Homer Firm is entitled to forum rates, and I find
herein as well that the hourly rates requested are reasonable, and in accordance with the Vaccine
Program forum-rate guidelines. See Barrett v. Sec’y of Health & Human Servs., No. 09-389, 2014
WL 2505689, at *8 (Fed. Cl. Spec. Mstr. May 13, 2014). I also award all time billed to the matter
by the Homer Firm. Based on a general review of the timesheets submitted, it appears the tasks
performed on the case to date were reasonable. I will similarly award all categories of costs
requested herein as invoiced by the Homer firm and by Petitioner, as they appear reasonable and
Respondent did not note any specific objections.
CONCLUSION
Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of final fee and cost awards, and based on the foregoing, I GRANT Petitioner’s Motion for
Attorney’s Fees and Costs. I therefore award a total of $45,738.70 in final fees and costs as a lump
sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. Ronald
Homer, Esq. I also award $7.85 in the form of a check payable to Petitioner, Barry Reese, for his
personal expenses. In the absence of a motion for review filed pursuant to RCFC Appendix B, the
clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of this decision.4
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
3