Culp v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1315V
(not to be published)
PENNY CULP,
Chief Special Master Corcoran
Petitioner,
v. Filed: April 24, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 28, 2018, Penny Culp 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 her receipt of an influenza vaccine in her left deltoid
on September 12, 2017, caused her to suffer an on-Table shoulder injury related to
vaccine administration. (Petition at 1). On August 22, 2019, a decision was issued
awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 30).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
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). 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 (2012).
Petitioner filed a motion for attorney’s fees and costs, dated February 18, 2020
(ECF No. 37), then amended the motion on March 21, 2020 (ECF No. 40), requesting a
total award of $26,210.28 (representing $24,232.20 in fees and $1,978.08 in costs). 3 In
accordance with General Order #9 Petitioner filed a signed statement indicating that she
incurred no out-of-pocket expenses. (ECF No. 37 at 2). Respondent reacted to the motion
on March 3, 2020 representing that he is satisfied that the statutory requirements for an
award of attorney’s fees and costs are met in this case, and deferring to my discretion in
determining the amount to be awarded. (ECF No. 38). The same day Petitioner filed a
reply requesting the fees and costs be awarded in full. (ECF No. 39). Respondent did
not file a response to Petitioner’s amended motion for fees and costs.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate, for the reason listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
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). The Petitioner “should present adequate proof [of the attorney’s
3 Petitioner’s counsel filed their original motion on February 21, 2020 (ECF No. 37). The amended motion
was intended to correct attorney Summer Abel’s hourly rate from $265 per hour to $295 per hour for time
billed in 2010. (ECF No. 40 at 1).
2
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.
ATTORNEY FEES
Petitioner requests the following rates of compensation for the work of his
attorneys: Leah Durant, $365 per hour for 2017, $377 for time billed in 2018, and $380
for time billed in 2020, and for Summer Abel, the rate of $285 for time billed in 2019. (ECF
No. 60-1 at 20). Petitioner also requests rates ranging from $145.00 per hour to $150 per
hour for paralegal work, depending on the individual paralegal and the year of the work.
(Id). The rates requested for Ms. Durant and the paralegals are consistent with what has
been awarded for their work in the Vaccine Program. Accordingly, no adjustment to the
requested rates is necessary.
The rate requested for Ms. Abel, however, warrants some reduction. Ms. Abel has
been a licensed attorney since 2015, placing her in the range of attorneys with 4-7 years’
experience (based on OSM’s rate schedules) for time billed in 2019. (ECF No. 40-3 at 1).
Although the specific requested rate for Ms. Abel work is within the appropriate
experience range, it is on the high end of the range for an attorney with her limited
experience in the Vaccine Program. 4 See McCulloch v. Sec’y of Health and Human
Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)
(stating that the following factors are paramount in deciding a reasonable forum hourly
rate: experience in the Vaccine Program, overall legal experience, the quality of work
performed, and the reputation in the legal community and community at large).
Based on my experience and the McCulloch factors as applied to Ms. Abel, a rate
of $250 is more appropriate for her time billed in 2019. This reduces the request for
attorney fees by $297.50. 5 I otherwise find that all time billed to this matter should be
awarded.
4 This appears to be Ms. Abel’s first case in the Vaccine Program where her hourly rates will be set.
5 This amount consists of $285 - $250 = $35 x 8.5 hrs = $297.50.
3
ATTORNEY COSTS
Petitioner requests $1,978.08 in overall costs. (ECF No. 40). This amount is
comprised of obtaining medical records, pacer fees and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable and award the
requested amount in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $25,912.78 (representing $23,934.70 in attorney’s fees and $1,978.08 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules
of the Court), the Clerk shall enter judgment in accordance with this decision. 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
4