Mann v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1020V
Filed: September 28, 2021
* * * * * * * * * * * * * *
JENNIFER MANN, * UNPUBLISHED
*
Petitioner, *
*
v. * Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Howard S. Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.
Claudia B. Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On July 16, 2018, Jennifer Mann (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered from Guillain-Barré
syndrome and chronic inflammatory demyelinating polyneuropathy after receiving an influenza
vaccination. See Petition (ECF No. 1). On April 1, 2021, petitioner filed a motion to voluntarily
dismiss her petition, and on the same day the undersigned issued her decision dismissing the
petition for insufficient proof. (ECF No. 36).
On July 19, 2021, petitioner filed an application for final attorneys’ fees and costs. (“Fees
App.”) (ECF No. 39). Petitioner requests total attorneys’ fees and costs in the amount of
1
The undersigned intends to post this Decision on the United States Court of Federal Claims' website. 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is required to post it on the United States Court of Federal Claims' website in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
$13,038.30, representing $11,886.00 in attorneys’ fees and $1,152.30 in costs. Fees App. at 2.
Pursuant to General Order No. 9, petitioner states she has not personally incurred any costs
associated with the prosecution of her petition. Id. Respondent responded to the motion on July
26, 2021, stating “Respondent is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and requesting that the undersigned “exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Response at 2 (ECF No. 40).
Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Legal Framework
The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although the petition
was eventually dismissed, the undersigned does not doubt the claim was filed in a good faith belief
that petitioner’s vaccination caused her injuries, and the case had a reasonable basis to proceed for
as long as it did. Respondent also has not challenged the good faith or reasonable basis of the
claim. Accordingly, petitioner is entitled to a final award of reasonable attorneys’ fees and costs.
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of
Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys' fees” is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347–48 (quoting
Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward
based on other specific findings. Id.Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl.
201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee
application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).
II. Discussion
A. Reasonable Hourly Rate
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for
the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's
attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
2
(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees
to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human
Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
For cases in which forum rates apply, McCulloch provides the framework for determining
the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See
McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3
Petitioner requests that her attorney, Mr. Howard Gold, be compensated at the following
hourly rates: $370.00 per hour for work performed in 2016, $380.00 per hour for work performed
in 2017, $390.00 per hour for work performed in 2018, $400.00 per hour for work performed in
2019, $410.00 per hour for work performed in 2020, and $422.00 per hour for work performed in
2021. These rates are consistent with what Mr. Gold has previously been awarded for his Vaccine
Program work and the undersigned finds them to be reasonable for work performed in the instant
case.
B. Hours Reasonably Expended
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton ex rel. Saxton v. Sec'y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health &
Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).
Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one-
half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V,
2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is
inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine
Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2
(Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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
3
The 2015-2021 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly
rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health &
Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
3
done.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–
29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that the billing entries adequately describe the work done on
the case and the amount of time spent on that work. None of the entries appear objectionable, nor
has respondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final
award of attorneys’ fees in the amount of $11,886.00.
C. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $1,152.30 in costs for acquisition of medical records and the Court’s filing fee. Fees App.
at 10. The undersigned finds these costs reasonable and supported with adequate documentation.
Accordingly, petitioner is entitled to the full amount of costs sought.
III. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned hereby awards a lump sum of $13,038.30, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable
jointly to petitioner and her attorney, Mr. Howard Gold.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
4