NORA BETH DORSEY, Chief Special Master.
On July 11, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On March 28, 2019, petitioner filed a motion for attorneys' fees and costs. (ECF No. 52. Petitioner requests attorneys' fees in the amount of $56,119.90 and attorneys' costs in the amount of $1,1084.98. Id. at 4. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. ECF No. 54-1 at 2. Thus, the total amount requested is $57,204.88.
Respondent filed no response.
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 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.
As discussed below, the undersigned finds it necessary to reduce the request for attorney's fees for hourly rates, non-compensable billing, duplicative entries and administrative time.
Petitioner requests compensation for the attorneys who worked on his case at the following rates: Andrew Melling at the rate of $400 per hour for all time worked, Celeste T. Jones at the rate of $455 per hour for all time worked and Erik Doerring at the rate of $455 per hour for all time worked.
The undersigned finds the requested rates excessive based on their overall legal experience, the quality of work performed, and their lack of experience in the Vaccine Program. See McCulloch v. Health & 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). These rates are derived from the OSM Attorneys' Forum Hourly Rate Schedules for years 2015 - 2018 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 also McCulloch, 2015 WL 5634323, at *19.
Mr. Melling has been a licensed attorney in South Carolina since 1995. ECF No. 52-2 at 2. This places him in the range of attorneys with 20 - 30 years' experience for all time billed throughout this case. The OSM Attorneys' Forum Hourly Rate Schedules provides as follows:
Although Mr. Melling's requested rate is within the appropriate experience range for 2017 and 2018, his inexperience in practicing in the Vaccine Program warrants a reduction of his requested rates.
The undersigned will award the requested rate of $400 for work performed in 2019. This results in a reduction of attorney fees requested in the amount of
Ms. Jones was licensed in the state of South Carolina in 1980, placing her in the range of attorneys with over 31 years of experience for her work performed through the case. The OSM Attorneys' Forum Hourly Rate Schedules provides as follows:
Ms. Jones' requested rate of $455 per hour is within the requested range for work performed in 2019, however it is at the top of the range and exceeds her range for 2017. Moreover, Ms. Jones lacks the experience in the Vaccine Program to justify an hourly rate of $455 per hour. Due to Ms. Jones' limited experience in the Vaccine Program, the undersigned finds cause to reduce her requested hourly rate. As such, Ms. Jones is awarded the following rates;
This results in a reduction of attorneys' fees requested in the amount of
Just like Ms. Jones, Mr. Doerring is in the range of attorneys with over 31 years' experience, being licensed in 1985 in the state of South Carolina. Mr. Doerring's requested rate of $455 per hour is within the requested range for work performed 2019, however it is at the top of the range and exceeds his range for 2017. Moreover, Mr. Doerring lacks the experience in the Vaccine Program to justify an hourly rate of $455 per hour. Due to Mr. Doerring's limited experience in the Vaccine Program, the undersigned finds cause to reduce his requested hourly rate. As such, Mr. Doerring is awarded the following rates;
This results in a reduction of attorneys' fees requested in the amount of
Ms. Oken billed time as a paralegal in this case, with a requested rate of $153 per hour for all time worked. The requested rate is outside of her range for paralegals in 2016 and 2017. The OSM Attorneys' Forum Hourly Rate Schedules is as follows:
While Ms. Oken's requested rate of $153 per hour is within the requested range for work performed 2018 and 2019, it is at the top of the range. Moreover, no supporting documentation was filed with the court to support the requested paralegal rate. Due to Ms. Jones' limited legal experience in the Vaccine Program, the undersigned finds cause to reduce her requested hourly rate. As such, Ms. Oken is awarded $145 per hour. This results in a reduction of attorneys' fees requested in the amount of
The undersigned also find it necessary to reduce Mr. Melling's requested hours for tasks that are not compensable, including time spent gaining admission to the bar of the U.S. Court of Federal Claims and researching aspects of the Vaccine Program. Mr. Melling and Ms. Oken billed 5.1 hours investigating, researching and preparing admission to the Federal Bar, and aspects of social security procedure. "[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 of these entries include:
ECF No. 52-1 at 3-5.
The undersigned reduces the request for attorney's fees by
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.
Billing records show that time was billed by both an attorney and paralegal to prepare and attend the same call or meetings. Examples
ECF No. 52-1 at 13, 15, and 17.
The undersigned reduces the request for attorney's fees by
Upon review of the billing records submitted, it appears 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 13.4 hours was billed on tasks considered administrative including, receiving and forwarding correspondence, reviewing, redacting and organizing documents, and preparing and mailing documents. Examples
ECF No. 52-1 at 4-5, 10, 17 and 20.
The undersigned reduces the request for attorney's fees by $
Petitioner requests reimbursement for attorney costs in the amount of $1,084.98. After reviewing petitioner's invoices, the undersigned finds no cause to reduce petitioner's' request and awards the full amount of attorney costs sought.
Based on the reasonableness of petitioner's request, the undersigned
The clerk of the court shall enter judgment in accordance herewith.
