NORA BETH DORSEY, Chief Special Master.
On March 11, 2015, Joseph Willett ("petitioner") filed a petition pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., (the "Vaccine Act").
On October 6, 2015, the undersigned issued a ruling on entitlement finding petitioner entitled to compensation for a shoulder injury related to vaccine administration ("SIRVA"). Ruling on Entitlement, issued Oct. 6, 2015 (ECF No. 29). On August 22, 2016, the undersigned issued a decision based on the respondent's proffer, awarding petitioner $60,000.00. Decision, issued Aug. 22, 2016 (ECF No. 54). On January 20, 2017, petitioner filed a motion for attorneys' fees and costs, along with two exhibits in support of his motion. See Petitioner's Motion for Attorneys' Fees and Costs ("Motion"), filed Jan. 20. 2017 (ECF No 58). Petitioner requests $33,077.35 in attorneys' fees and $740.39 in costs, for a total amount of $33,817.74. Id. at 1; Exhibit A (ECF No. 58-1); Exhibit B (ECF No. 58-2). In compliance with General Order #9, petitioner filed a signed statement indicating he incurred no out-of-pocket expenses. (ECF No. 59).
Petitioner requests an award of $33,077.35 in attorneys' fees (including fees for two associate attorneys, seven paralegals, a "non-attorney advocate," and two persons with unstated job titles) and $740.39 in costs. The motion included time and expense sheets, as well as a supporting statement ("certification") from petitioner's counsel, Mark T. Sadaka, providing background information on himself and some members of his staff. See Motion at 1-5; Exhibits A and B.
Respondent filed a response on February 6, 2017. See Respondent's Response ("Resp't's Resp."), filed Feb. 6, 2017 (ECF No. 60). Respondent defers to the undersigned to determine a reasonable amount of fees and costs. Id. at 3.
Petitioner filed a reply on February 7, 2017, urging the undersigned to "grant Petitioner's request for $39,817.34 in attorney's fees and costs."
After reviewing petitioner's motion and supporting documentation, and giving full consideration to the arguments set forth in the parties' briefs, the undersigned is ready to decide this matter.
Under the Vaccine Act, the special master shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). Petitioner in this case was awarded compensation; he is therefore entitled to an award of reasonable attorneys' fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys' fees and costs under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines "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 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348.
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. Cl. 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).
An application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed. Rodriguez, 2009 WL 2568468, at *8. Block billing, or billing large amounts of time without sufficient detail as to what tasks were performed, is clearly disfavored. See, e.g., Broekelschen v. Sec'y of Health & Human Servs., No. 07-137V, 2008 WL 5456319, at *4-5 (Fed. Cl. Spec. Mstr. Dec. 17, 2008).
In determining a reasonable number of hours expended, a line-by-line evaluation of the fee application is not required. Wasson v. Sec'y of Health & Human Servs., 24 Cl.Ct. 482, 484, aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters may rely on their experience with the Vaccine Act and its attorneys to determine the reasonable number of hours expended. Id. Just as "[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications." Saxton, 3 F.3d at 1521.
Petitioner requests compensation for Mr. Sadaka at a rate of $337.05 per hour for time billed in 2013; $350 per hour for 2014 and 2015; and $362.95 per hour for 2016. Exhibit A at 22. These rates have been evaluated and awarded to Mr. Sadaka in other Vaccine Act cases. See, e.g., Siciliano v. Sec'y of Health & Human Servs., 2017 WL 1174449 (Fed. Cl. Spec. Mstr. Feb. 21, 2017). The requested rates are awarded herein.
Petitioner also requests compensation for Anna C. Sweeney and Andrew Pinon, associate attorneys in Mr. Sadaka's firm. The rates requested for Ms. Sweeney are $192.60 per hour for time billed in 2013; and $200 per hour for 2014 and 2015. The requested rates for Mr. Pinon are $200 per hour for 2015; and $207.40 per hour for 2016. Exhibit A at 22. Ms. Sweeney and Mr. Pinon have been awarded these rates previously. See, e.g., Siciliano, 2017 WL 1174449, at *2. The requested rates are awarded herein.
Finally, petitioner requests compensation for numerous non-attorney members of Mr. Sadaka's firm, including seven paralegals, a non-attorney advocate, and two other persons with unstated job titles or credentials. Exhibit A at 22. The rates requested for five of the paralegals were awarded previously in Siciliano, and the undersigned awards them herein.
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 similarly reduces the fee request in this case, finding many billing entries excessive and duplicative.
Petitioner's counsel billed nearly 80 hours (and approximately $10,000) of paralegal time for work related to requesting, receiving, and reviewing medical records. See Exhibit A at 1-21.
It is firmly rooted that billing for clerical and other secretarial work is not permitted in the Vaccine Program. Rochester v. United States, 18 Cl.Ct. 379, 387 (1989) (denied an award of fees for time billed by a secretary and found that "[these] services . . . should be considered as normal overhead office costs included within the attorneys' fees rates"); Mostovoy v. Sec'y of Health & Human Servs., 2016 WL 720969, *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016).
Petitioner's counsel's billing records contain multiple entries that are best characterized as administrative time. For instance, at least 5.2 hours of time were billed solely to "Update schedule," "Update file," or both. See Exhibit A at 1-21.
The undersigned has previously decreased an award of attorneys' fees for vagueness. Mostovoy, 2016 WL 720969; Barry v. Sec'y of Health and Human Servs., 12-39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reduced a fee award by 10 percent due to vague billing entries). An application for fees and costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file, whether the amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl.Ct. 751, 760 (1989); Rodriguez v. Sec'y of Health & Human Servs., 2009 WL 2568468 (Fed. Cl. Spec. Mast. June 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed. Id. at *8.
The undersigned finds the number of vague billing entries in this case particularly troubling. As an example, at least 8 hours of attorney and paralegal time were billed over 25 separate entries to perform case review and draft/revise directives. This activity generated more than $1,500 in fees. See Exhibit A at 1-21.
For all of these reasons, the undersigned reduces petitioner's entire fee award by 20 percent. See Ericzon, 2016 WL 447770 (reducing fee award by 10 percent); Barry, 2016 WL 6835542 (reducing fee award by 10 percent); Raymo, 2016 WL 7212323 (reducing fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016); see also Wasson, 24 Cl.Ct. at 484 (a line-by-line evaluation is not required in determining a reasonable number of hours expended), aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993).
Petitioner requests reimbursement for attorney costs in the amount of $740.39. The undersigned finds no cause to reduce petitioner's request and awards the full amount sought.
The undersigned awards petitioner the following for attorneys' fees and costs:
The clerk of the court is directed to enter judgment in accordance with this decision.
