NORA BETH DORSEY, Chief Special Master.
On August 7, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On March 1, 2019, petitioner filed a motion for attorneys' fees and costs. ECF No. 36. Petitioner requests attorneys' fees in the amount of $23,952.50 and attorneys' costs in the amount of $1,096.17. Id. at 3. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at 3. Thus, the total amount requested is $25,048.67.
On March 6, 2019, respondent filed a response to petitioner's motion. ECF No. 37. 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 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). The Federal Circuit endorses the lodestar approach to determine reasonable attorneys' fees and costs. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under the lodestar approach, a court makes "an initial estimate of a reasonable attorneys' fee 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)). After this initial calculation, the court "may then make an upward or downward departure to the fee award based on other specific findings." Id. at 1348.
The reasonableness standard applies both to attorneys' fees and costs. Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 315 (2008). 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. Id. at 316-18. 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. 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.
Upon review of the billing records the undersigned reduces the request for attorneys' fees and costs due to excessive hourly rates, paralegal tasks billed at an attorney rate, administrative charges, and non-compensable fees and costs.
Petitioner requests hourly rates for the attorneys and paralegal who worked on his case at the following rates for all time worked:
ECF No. 36 at 2.
The undersigned finds the rates for Jazz Hampton and Eric Lindenfeld excessive based on their overall legal experience, the quality of work performed, and their lack of experience in the Vaccine Program. McCulloch v. Health and Human Services, No. 09-293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating 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). The undersigned has utilized the OSM Attorneys' Forum Hourly Rate Schedules for years 2015 - 2018 in reviewing and setting appropriate hourly rates in this case. These schedules are available on the U.S. Court of Federal Claims website at www.cofc.uscourts.gov/node/2914. The undersigned incorporates by reference all of the explanatory notes contained in these rate schedules. See McCulloch, 2015 WL 5634323, at *19.
The undersigned finds the requested rate of $225 per hour excessive based on Mr. Hampton's overall legal experience and his lack of experience in the Vaccine Program. See McCulloch, 2015 WL 5634323, at *17. Mr. Hampton has been licensed in the state of Minnesota since 2015, placing him in the range of attorneys with less than four years' experience for his work performed throughout the case. The OSM Attorneys' Forum Hourly Rate Schedules provides as follows:
While Mr. Hampton's requested rate of $225 per hour is within the requested range for work performed in 2017 and 2018, it is at the high end of the range. The undersigned finds that Mr. Hampton lacked the practice experience to justify an hourly rate of $225 in 2017. Due to Mr. Hampton's limited legal experience in general, two years in 2017, and in particular his inexperience in the Vaccine Program, the undersigned finds cause to reduce his requested hourly rate commensurate with his practice experience. As such, the undersigned reduces Mr. Hampton's rate for 2017 to $200 per hour and will award the rate of $225 per hour for time worked in 2018. This reduces the request for attorneys' fees in the amount of
As with Mr. Hampton, the undersigned finds the requested rate for Mr. Lindenfeld is excessive based on his limited legal experience in general and his lack of specific experience in the Vaccine Program. See McCulloch, 2015 WL 5634323, at *17. Mr. Lindenfeld was licensed in the state of Minnesota in 2016, giving him less than one year of experience as a licensed attorney when he worked on this case.
The undersigned finds the requested rates for attorneys Michael Haag and Seymour Mansfield, as well as paralegal Richard Hunding, appropriate and awards the requested rates.
The undersigned also finds it necessary to reduce the attorneys' requested rates for time billed on paralegal tasks. Attorneys may be compensated for paralegal-level work, but at a rate that is comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec'y of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec'y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins v. Health & Human Servs., 99-382V, 2009 WL 3319818, *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec'y of Health & Human Servs., No. 99-535, 2008 WL 5747914, *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008).
Billing records submitted show attorneys billed 7.7 hours of time for work for on tasks that are more appropriately categorized as paralegal in nature. Examples
ECF No. 36-2 at 2-3 and 5-6.
The undersigned reduces 7 hours of time billed at an attorney rate for performing paralegal tasks to the paralegal rate of $125.00 per hour. This results in a reduction of the fees requested in the amount of
Upon review of the billing records submitted, it is apparent that a number of entries are for tasks considered clerical or administrative. In the Vaccine Program, 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). A total of 3 hours was billed on tasks considered administrative, including: receiving documents, forwarding correspondence, and paying invoices. Examples
ECF No. 36-2 at 5, 7 and 8.
The undersigned reduces the request for attorney fees requested in the amount of
The undersigned also finds it necessary to reduce Mr. Hampton's request for attorney fees for tasks that are not compensable, including time researching aspects of the Vaccine Program and admission to the bar of the U.S. Court of Federal Claims. A total of 7.2 hours is reduced for time billed on tasks that are considered non-compensable. "[I]t 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). "An inexperienced attorney may not ethically bill his client to learn about an area of law in which he is unfamiliar. If an attorney may not bill his client for this task, the attorney may also not bill the Program for this task." Carter v. Sec'y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007). Examples
ECF No. 36-2 at 2-3, 6 and 8.
Therefore, the undersigned reduces the fee request by
Petitioner requests reimbursement for attorney costs in the amount of $1,096.17. After reviewing petitioner's invoices, the undersigned finds one requested cost that is non-compensable. Just as an attorney cannot bill the program to research admission to the Court of Federal Claims, the cost for admission to the Court of Federal Claims is also non-compensable. Raymo v. Sec'y of Health & Human Servs., No. 11-654V, 2016 WL 7212323, at *12 (Fed. Cl. Spec. Mstr. Nov. 2, 2016), mot. for rev. denied, 129 Fed. Cl. 691 (2016); Oswalt v. Sec'y of Health & Human Servs., No. 03-2153V, 2011 WL 2149932 (Fed. Cl. Spec. Mstr. May 2, 2011) (denying fees for time spent preparing application for admission to the USCFC bar); Ceballos v. Sec'y of Health & Human Servs., No. 99-97V, 2004 WL 784910 (Fed. Cl. Spec. Mstr. Mar. 25, 2004) (the admission fee for the USCFC bar is not recoverable).
Petitioner's summary of costs reflects a cost of $281.00 billed as "U.S. Clerk of Court — Other Professionals — Admission fee for Attorney Seymour Mansfield to be admitted to practice in US Court of Federal Claims." ECF No. 36-3 at 2. Therefore, the undersigned reduces the request for attorneys' costs by
Based on the reasonableness of petitioner's request, the undersigned
The clerk of the court shall enter judgment in accordance herewith.
