Settle v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1009V
Filed: May 2, 2019
UNPUBLISHED
KIMBERLY SETTLE,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On July 26, 2017, petitioner 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”) following an influenza (“flu”) vaccine administered on October
21, 2016. Petition at 1. On April 1, 2019, the undersigned issued a decision awarding
compensation to petitioner based on the respondent’s proffer. ECF No. 40.
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 Because this unpublished decision contains a reasoned explanation for the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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On April 3, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No.
44. Petitioner requests attorneys’ fees in the amount of $13,704.90 and attorneys’
costs in the amount of $546.76. Id. at 11. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. at 11. Thus, the total amount requested is $14,251.66.
On April 18, 2019, respondent filed a response to petitioner’s motion. ECF No.
45. Respondent states that he “is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully
recommends that the Chief Special Master exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” Id. at 3.
Through email correspondence on April 18, 2019, counsel for petitioner notified
the undersigned that petitioner does not intend to file reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reason listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
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 & Human 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 & Human 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 & Human 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 & Human 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 & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. 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.
2
II. Attorney Fees
A. Hourly Rates
Petitioner requests the following rates for work performed by attorney Jeffrey Pop
and his staff:
2017 2018 2019
Jeffrey S. Pop $420 $445 $453
Kristina E. Grigorian $250 $285 $292
Alexandra B. Pop $225 $255 $262
Law Clerks $125 $135 $138
The requested rates for 2017 have previously been awarded and will be awarded
herein. Mr. Pop and his staff has also been awarded rates for work performed in 2018. 3
See Baum v. Sec’y of Health & Human Servs., No. 16-0766V, 2018 WL 2225388, (Fed.
CL. Spcl. Mstr. February 22, 2018); McDonald v. Sec’y of Health & Human Servs., No.
17-0149V, 2018 WL 2225799, (Fed. CL. Spcl. Mstr. February 26, 2018); Benson v.
Sec’y of Health & Human Servs., No. 16-1062V, 2018 WL 2772262, (Fed. CL. Spcl.
Mstr. March 9, 2018); and Gregory v. Sec’y of Health & Human Servs., No. 16-1360V,
2018 WL 3991278, *Fed. CL. Spcl. Mstr. February 22, 2018). The undersigned reduces
the requested rates to those previously awarded for 2018, which consists of the
following:
2018
Jeffrey S. Pop $420
Kristina E. Grigorian $250
Alexandra B. Pop $225
Law Clerks $125
This results in a reduction of the attorneys’ fees requested in the amount of $443.00. 4
For 2019, the undersigned finds the requested rate increases reasonable given
the undersigned’s experience, the analysis of the McCulloch factors as applied to Mr.
Pop and his associates and that Mr. Pop has not requested a rate increase since 2016.
The undersigned awards the requested rates for 2019 in full.
.
3Mr. Pop’s firm had 40 judgments issued for the calendar year of 2018, wherein the rates cited were
awarded. ECF No. 44 at 5.
4This amount consists of ($445 - $420 = $25 x 5.7 hrs = $142.50) + ($285 - $250 = $35 x 1.3 hrs =
$45.50) + ($255 - $225 = $30 x 6.4 hrs = $192) + ($135 - $125 = $10 x 6.3 hrs = $63) = $443.00.
3
III. Attorney Costs
Petitioner requests reimbursement for attorneys’ costs in the amount of $546.76.
After reviewing petitioner’s invoices, the undersigned finds no cause to reduce
petitioner’s’ request and awards the full amount of attorneys’ costs sought.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $13,808.66 5 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Jeffery S. Pop.
The clerk of the court shall enter judgment in accordance herewith. 6
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5 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, § 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 & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
4