NORA BETH DORSEY, Chief Special Master.
On November 12, 2015, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On August 31, 2018, petitioner filed a motion for attorneys' fees and costs. ECF No. 60. Petitioner requests attorneys' fees in the amount of $40,436.50 and attorneys' costs in the amount of $7,766.18. Id. at 13. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. ECF No. 63 at 1. Thus, the total amount requested is $48,202.68.
On September 13, 2018, respondent filed a response to petitioner's motion. ECF No. 62. 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. Respondent "respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
Petitioner has filed no 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 reasons listed below.
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 engaged 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.
Mr. Doody attests he has been practicing law for over 16 years, which places him in the range of attorneys' with 11-19 years' experience for the duration of this case. Id. at 3. Petitioner requests compensation for attorney Scott R. Doody at the following rates; $275 per hour for work performed in 2014, $300 per hour for work performed in 2015, $325 per hour for work performed in 2016, $350 per hour for work performed in 2017 and $350 per hour for work performed in 2018. ECF No. 60 at 5-12. The undersigned finds the rate of $275 for 2014 and $300 for the rate of 2015 appropriate and awards it herein.
Given Mr. Doody's inexperience in the Vaccine Program
Furthermore, based on the undersigned's experience and application of the factors discussed in McCulloch, Mr. Doody's requested hourly rate for work performed in 2017 is reduced to $315 and for work performed in 2018 his hourly rate is reduced to $325. McCulloch, 2015 WL 5634323, at *17. Therefore,
In the Vaccine Program, special masters traditionally have compensated time spent traveling when no case work was being performed at one-half an attorney's hourly rate. See Hocraffer v. Sec'y of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec'y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use this rule as standard practice but rather "[e]ach case should be assessed on its own merits." Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). "Even an automatic 50% award may be too high for an undocumented claim, given the possibility that an attorney may use the travel time to work on another matter or not to work at all while traveling." Id.
Mr. Doody billed travel time throughout the case and petitioner's application for attorneys' fees does not indicate whether Mr. Doody performed work while traveling. In 2014, Mr. Doody billed 3 hours at the reduced rate of $137 per hour and in 2015 billed 3 hours at the rate of $150 per hour. As these rates are 50% of the hourly rates for those years, the undersigned finds the rates appropriate and awards them herein. For 2017 and 2018 Mr. Doody billed his travel time as follows:
ECF No. 60 at 9-12.
The billing rates for the 2017 travel time are inconsistent and shall be reduced by 50% of the hourly rate awarded for 2017 and 2018. At a 50% reduction, the rate for travel in 2017 will be $157.50 per hour. The rate for travel in 2018 will be $162.50 per hour. Therefore,
The undersigned has previously reduced the fees paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec'y of Health & Human Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive and duplicative billing); Raymo v. Sec'y of Health & Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). The undersigned and other special masters have previously noted the inefficiency that results when cases are staffed by multiple individuals and have reduced fees accordingly. See Sabella, 86 Fed. Cl. at 209.
The undersigned notes multiple duplicated entries are listed throughout the billing records filed with petitioner's application for attorneys' fees. These entries include:
ECF No. 60 at 5-11.
These entries total 3.9 hours of duplicated time. The undersigned shall
Mr. Doody billed 7.6 hours on tasks that could be completed by a paralegal. "Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney's rate." Riggins v. Sec'y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). "[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed." Doe/11 v. Sec'y of Health & Human Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Examples of these entries include:
ECF No. 60 at 5-12.
The undersigned shall
It is clearly established that secretarial work "should be considered as normal overhead office costs included within the attorneys' fee rates." Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec'y of Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). "[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program." Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). Over 4 hours of time was billed on tasks considered administrative, including sending correspondence, creating files, mailing payments and confirming appointments. Examples of these entries include the following
ECF No. 60 at 5-6, 8-10, 12.
The undersigned shall
Petitioner requests compensation for attorneys' costs in the amount of $7,766.18. These costs include medical records, filing fees, and expenses regarding the life care plan. ECF No. 60 at 12. On September 6, 2018, the undersigned filed a scheduling order for petitioner's counsel to submit receipts or invoices to support the request for attorney costs. ECF No. 61. On October 2, 2018, petitioner filed a supplemental motion for attorneys' fees and costs, including incomplete receipts and invoices for costs. ECF No. 64. At this time, the undersigned will award petitioner the requested attorneys' costs in full, however, in the future, requested attorneys' costs will be reduced if the supporting documentation is not included.
Therefore, the undersigned
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). Based on the reasonableness of petitioner's request, the undersigned
The clerk of the court shall enter judgment in accordance herewith.
