KATHERINE E. OLER, Special Master.
On October 6, 2016, Petitioner, (Nicole Mackey), filed a petition for compensation in the National Vaccine Injury Compensation Program ("the Program"),
Petitioner now seeks an award of attorneys' fees and costs, requesting $27,195.75 in attorneys' fees and $500 in costs for a total of $27,695.75.
On August 21, 2017, Petitioner filed a motion for attorneys' fees and costs (AFC Motion), requesting $31,995.00 in attorneys' fees for counsel Bradley S. Freedberg and Greg Cairns, and $500.00 in costs, for a total of $32,495.00. Petitioner's ("Petr's") Application ("App.") dated August 21, 2017, ECF No. 22 at 2.
Respondent filed a response to Petitioner's AFC motion on August 23, 2017. Respondent's Response, dated August 23, 2017, ECF No. 23. 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." Id. 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 "respectfully recommends that [I] exercise [my] discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
This case was transferred to my docket on December 5, 2017. ECF No. 29. I issued a detailed order on February 12, 2018, highlighting several deficiencies with Petitioner's AFC motion, and ordering Petitioner to rectify those inadequacies. See Order To Supplement Petitioner's Motion For Attorneys' Fees and Costs, ECF No. 31. In my order of February 12, 2018, I highlighted (1) that Petitioner's AFC Motion lacked an updated signed statement indicating that Ms. Mackey did not incur any out-of-pocket expenses throughout the pendency of this case, as required by the Vaccine Program's Guidelines for Practice
On February 20, 2018, Petitioner filed a statement in compliance with General Order # 9 (see ECF No. 33), and a document entitled "Supplement To Attorney's [sic] Fee Application For Petitioner" (see ECF No. 32, hereafter "AFC Supplement"),
AFC Supplement at 1. Additionally, Petitioner's AFC Supplement stated that both of her counsel in this case had "adjusted their time" to reflect the cutting of "ministerial tasks," and that the administrative task of Bate stamping of medical records was accomplished while conducting review of those records. Id. at 2.
Petitioner's AFC Supplement did not include a memorandum of law citing the proper legal authority justifying Petitioner's attorneys' hourly rates requested in this case. See AFC Supplement at 2. Instead, Petitioner (1) argued that her attorneys' requested rates "are not obtusely divergent from the reasonable hourly fees cited and recognized by the special master [in my order of February 12, 2018]" (id.), and (2) reduced her overall fees request by fifteen percent — "for expediency sake" — now requesting $27,195.75 in attorneys' fees, and $500 in costs for a revised requested total of $27,695.75 (id.).
On March 6, 2018, Respondent's counsel, with Petitioner's counsel copied on the communication, emailed a member of my staff informing me that Respondent would not be filing a response to Petitioner's AFC Supplement. Thus, this matter is now ripe for decision.
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 also Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Thus, as a successful Vaccine Act petitioner, Ms. Mackey is entitled to a fees and costs award.
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, "[t]he initial estimate of a reasonable attorney's fee" 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).
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) (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)).
In this case, the entirety of the counsel of record's work was performed in Denver, Colorado. See Petr's App. at 2; see also Ex. A at 5-6. A previous special master has awarded forum rates to legal professionals practicing in the Greater Denver, Colorado area. See Miranda v. Sec'y of Health & Human Servs., No. 10-776V, 2016 WL 3092239 (Fed. Cl. Spec. Mstr. May 5, 2016).
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.
Petitioner's AFC motion states that Mr. Freedberg has more than twenty-eight years of experience practicing law. Petr's App. at 1. The handwritten billing entries submitted in this case by Mr. Freedberg reflect that he performed work on this case from September 2016 through August 2017.
Accordingly, the 2015-2016 Hourly Rate Fee Schedule sets forth an attorneys' fees range of $350-$415 per hour for an attorney of Mr. Freedberg's experience (between 20-30 years of experience in practice).
As Petitioner's AFC Supplement points out above, this instant matter was the first Vaccine Act case brought by Mr. Freedberg, and thus I find that the lower end of the McCulloch fees range is an appropriate hourly rate. See Srour v. Sec'y of Health & Human Servs., No. 14-283V, 2017 WL 2537373, at *4 (Fed. Cl. Spec. Mstr. May 17, 2017) (awarding hourly rate based in part on "specific experience with the Vaccine Program"); Dipietro v. Sec'y of Health & Human Servs., No. 15-742V, 2016 WL 7384131, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (considering level of experience in the Vaccine Program in determining appropriate hourly rate). Thus, I find that Mr. Freedberg is entitled to an hourly rate of $350.00 for work performed in 2016, and an hourly rate of $358.00 for work performed in 2017.
Petitioner's AFC motion states that Mr. Cairns has more than thirty years of experience practicing law (see Petr's App. at 1-2), and the billing entries submitted by Mr. Cairns reflect him performing work on this case from August 2016 through January 2017 (see Ex. A at 7-8).
As I noted in my order of February 12, 2018, Mr. Cairns would normally be entitled to hourly rates in accordance with his experience, as listed in the 2015-2016 and 2017 Hourly Rate Fee Schedules posted on this Court's website. See ECF No. 31 at 3, n. 7 (citing OSM Attorneys' Forum Hourly Rate Fee Schedules for 2015-2016 and 2017). It has come to my attention since my order of February 12, 2018, however, that Mr. Cairns is not admitted to practice in the Court of Federal Claims.
Vaccine Rule 14(a)(1). Moreover, the Vaccine Rules make clear that there can be only one attorney of record at any point in a case, stating as follows:
Vaccine Rule 14(b)(1).
As an initial matter, I note that it was unreasonable for Petitioner's counsel of record, Mr. Freedberg, to have Mr. Cairns as an "associated counsel"
Having considered the overall circumstances of this case, however, where Petitioner was awarded compensation for her Vaccine Act petition, and the fact that this was the first case in the Vaccine Program for her counsel of record, Mr. Freedberg, and "associated counsel," Mr. Cairns, I will award some fees for the work performed by Mr. Cairns. The work performed by Mr. Cairns will not be compensated at the applicable rate for an attorney of his experience, however; rather, I find Mr. Cairns' work in this case to be a supportive role to Mr. Freedberg's primary prosecution of this case. My finding that Mr. Cairns' involvement in this case is more akin to that of a supportive, paralegal role is further strengthened by my close examination of Mr. Cairns' billing invoices prior to the filing of Petitioner's Vaccine Act case on October 6, 2016, reflecting numerous billing entries in which he performs non-attorney level work that is generally performed by a paralegal. See, e.g., Ex. A at 7, billing entry of 8/28/2016 ("[a]ssemble medical records for complaint"); Id., billing entry of 9/8/2016 ("[r]eview and revise exhibit packet for complaint"); Id., billing entry of 9/9/2016 ("[r]eview and revise exhibit packet for complaint"); Id. at 7-8, billing entry of 9/19/2016 ("[r]eview and update medical record set for complaint"); Id. at 8, billing entry of 9/28/2016 ("[a]ssemble additional medical records for complaint and Bate stamp all pages"). These billing entries further highlight Mr. Cairns' ancillary role in the prosecution of this claim when examined in conjunction with Mr. Freedberg's billing entries — entries that reflect Mr. Freedberg billing for duplicative work already performed by Mr. Cairns, such as reviewing Petitioner's medical records and reviewing "Bate Stamp Assembly" of medical records. See Ex. A at 5.
Accordingly, I find it appropriate to use the hourly range applicable for non-attorney-level work, as listed in the 2015-2016 and 2017 Hourly Rate Fee Schedules — i.e., $125-$145 for 2016,
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 v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (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). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. 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 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); see also Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997).
As pointed out in my order of February 12, 2018, Petitioner's AFC motion reflects that several of the hours billed by Mr. Freedberg and Mr. Cairns at their attorney rates are more appropriately classified as either paralegal time, or as clerical tasks.
AFC Supplement at 2. Petitioner does provide a reasonable explanation as to why her fees request — reflecting time billed for a task such as reviewing "Bate Stamp Assembly" — should not be considered an administrative task, and thus time billed for that task will not be cut. Apart from that specific task, however, Petitioner's AFC Supplement does not provide a proper explanation for why other administrative tasks that are reflected in her attorneys' time sheets should not be reduced. In this regard, I note that a majority of Mr. Freedberg's billing entries constitute block billing, wherein counsel billed for multiple tasks in a single entry. Some of the blocks contain time that is not compensable, along with time that is compensable. For such entries, it is impossible to determine the precise portion of the time billed that should be compensated.
Because it is counsel's burden to document the fees claimed, I will reduce the total award of attorneys' fees, with the hourly rate modifications discussed above,
Accordingly, Petitioner is awarded $18,502.67
Petitioner requests a total of $500.00 in attorneys' costs. See App. at 1. The requested costs consist of filing fees, and service and copying costs associated with prosecuting this claim. Id. I find those costs to be reasonable and will grant them in full.
Based on the foregoing, I award a total of
ECF No. 1 at ¶ 20, emphasis added. The above statement — in which Petitioner projected as of the date of the filing of her petition that her attorneys would be billing between 55-80 hours in this case — raises a question as to the contemporaneous nature of Mr. Freedberg's billing entries. Nonetheless, I accept Petitioner's representations in her AFC Motion stating that Mr. Freedberg's handwritten billing entries do reflect "contemporaneous time entries." Petr's App. at 1.
It is also possible that the signed retainer agreement reflects a typographical error made by Ms. Mackey, in which she dated the retainer agreement for October 6, 2015, but instead intended to date the agreement for October 6, 2016. Compare Ex. A at 4 (reflecting Ms. Mackey's signature on the retainer agreement dated as of October 6, 2015), with ECF No. 1 (reflecting that the petition was filed in this case on October 6, 2016). I note, however, that my order of February 12, 2018, provided Petitioner forty-five days to further supplement the record of this case. Instead, Petitioner filed a response in which she simply reduced her attorneys' fees request by fifteen percent. See AFC Supplement at 2, filed on February 20, 2018. Thus, without additional documentation, it is unclear from the existing record if the date reflected on the signed retainer agreement was in fact a typographical error.
Assuming, arguendo, that the date reflected in the retainer agreement was a typographical error, this fact does not change my analysis. I still find that Mr. Freedberg and Mr. Cairns should have ensured that Mr. Cairns was officially admitted to this Court's Bar.
