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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
LINDA MCGUIRE, *
* No. 16-1101V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: April 29, 2020
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Jeffrey A. Golvash, Golvash & Epstein, LLC, Pittsburgh, PA, for Petitioner;
Sarah C. Duncan, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Linda McGuire’s motion for final
attorneys’ fees and costs. She is awarded $30,906.76.
* * *
On September 12, 2016, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccine she received on September 4, 2013,
1
Because this published 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her to
suffer acute disseminated encephalomyelitis and multiple sclerosis. Petitioner
further alleged that she suffered the residual effects of this injury for more than six
months. On November 25, 2019, the parties filed a stipulation, which the
undersigned adopted as his decision awarding compensation on the same day.
On January 16, 2020, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $32,062.00 and
attorneys’ costs of $447.86 for a total request of $32,509.86. Fees App. at 1.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of her case. (ECF No. 77). On January
28, 2020, respondent filed a response to petitioner’s motion. Respondent argues
that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id at 2. Additionally, he recommends “that the Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 3. Petitioner did not file a reply thereafter.
* * *
Because petitioner received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … 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)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
2
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates of compensation for the work of her
attorney, Mr. Jeffrey Golvash: $300.00 per hour for work performed in 2016 to
2018, and $350.00 per hour for work performed in 2019. These rates are consistent
with what the undersigned and other special masters have previously awarded Mr.
Golvash for his Vaccine Program work, and they are reasonable for the work
performed in the instant case. See, e.g. Sokol v. Sec’y of Health & Human Servs.,
No. 16-1631V, 2019 WL 4723836 (Fed. Cl. Spec. Mstr. Aug. 28, 2019).
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
Upon review, the undersigned finds a small reduction to the hours billed
necessary. The main issue is that counsel has routinely overbilled for completion of
minor tasks, such as reviewing simple filings from respondent and the Court and
for preparation of pro forma filings. For example, counsel billed 0.5 hours on
7/22/19 to “Prepare Petitioner’s Status Report Re: Settlement. Efile Status Report.”
Fees App. at 12. This status report contains one sentence of original text. Counsel
also routinely billed 0.2 hours or greater for review of scheduling orders and status
reports from respondent which is also excessive in the undersigned’s experience.
The undersigned also notes that many of counsel’s entries are block billed
because they combine several tasks into one billing entry for the day, rather than
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giving each discrete task its own entry. For example, on 5/5/17, counsel billed 3.6
hours to “Review file. Prepare draft of settlement demand. Follow up with client to
review and discuss.” Fees App. at 6. Although many of these tasks are interrelated
such that counsel may flow naturally from one task to the next, entries such as
these still make it difficult for the undersigned to assess their reasonableness. This
is especially so when some of these billing entries contain time spent filing
documents, which is a non-reimbursable clerical task. See Hoskins v. Sec’y of
Health & Human Servs., No. 15-71V, 2017 WL 3379270, at *3, 6-7 (Fed. Cl.
Spec. Mstr. July 12, 2017).
Accordingly, the undersigned shall reduce the final award of attorneys’ fees
by five percent to account for these issues, a reduction of $1,603.10. Petitioner is
therefore awarded final attorneys’ fees of $30,458.90.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$447.86 in attorneys’ costs. This amount is comprised of acquiring medical
records, postage charges, and a narrative report prepared by Dr. Thomas Scott.
Petitioner has provided adequate documentation supporting all of the requested
costs, and all appear reasonable in the undersigned’s experience. Petitioner is
therefore awarded the full amount of attorneys’ costs sought.
E. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $30,906.76 (representing
$30,458.90 in attorneys’ fees and $447.86 in attorneys’ costs) as a lump sum in the
form of a check jointly payable to petitioner and petitioner’s counsel, Mr. Jeffrey
Golvash.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
2
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
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s/Christian J. Moran
Christian J. Moran
Special Master
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