NORA BETH DORSEY, Chief Special Master.
On January 5, 2015, Deborah Valles ("petitioner") filed a petition pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq., (the "Vaccine Act").
On February 2, 2017, the undersigned issued a decision based on the parties' stipulation, awarding petitioner $20,000.00. Decision, filed Feb. 2, 2017 (ECF No. 48). On March 28, 2017, petitioner filed an application for attorneys' fees and costs, along with two exhibits in support thereof. Pet'r's Appl. for Att'ys' Fees and Costs ("Application"), filed Mar. 28, 2017 (ECF No. 51).
Petitioner requests $23,096.09 in attorneys' fees and $3,183.61 in costs, for a total award of $26,279.70.
For the reasons stated below, the undersigned finds certain reductions are necessary, and awards petitioner a total of $23,970.09 in attorneys' fees and costs.
Petitioner requests $23,096.09 in attorneys' fees (including fees for two associate attorneys and five paralegals) and $3,183.61 in costs. The Application provides time and expense sheets, in addition to a supporting statement ("Certification") from petitioner's counsel providing background information on himself and some members of his staff who worked on the case. Application at 3-7; Exs. A and B.
Respondent filed a response to petitioner's application on April 14, 2017. Respondent's Response ("Resp't's Resp."), filed Apr. 14, 2017 (ECF No. 52). Respondent did not object to the overall amount sought, but noted that his lack of objection "should not be construed as admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs." Id. at 1.
Petitioner filed a reply on April 14, 2017, requesting this Court "grant her motion for the aforementioned fees and costs." Petitioner's Reply ("Pet'r's Reply"), filed Apr. 14, 2017 (ECF No. 53) at 1.
Pursuant to 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, and she is entitled to reasonable attorneys' fees and costs.
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). The application must provide sufficient detail and explanation of the time billed so that a special master may adjudge the reasonableness of the amount requested. 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 at *8 (Fed. Cl. Spec. Mstr. July 27, 2009). It is the petitioner who bears the burden of adequately documenting the fees and costs. Rodriguez, 2009 WL 2568468 at *8.
Special masters need not conduct a line-by-line evaluation of a petitioner's fee application to determine a reasonable number of hours expended. Wasson v. Sec'y of Health & Human Sevs., 24 Cl.Ct. 482, 484, aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993); Nelson v. Sec'y of Health & Human Servs., No. 14-70V, 2015 WL 9302973 at *2 (Fed. Cl. Spec. Mstr. Nov. 30, 2015) ("It is within the special master's discretion to reduce the number of hours by a percentage of the amount charged, rather than making a line-by-line determination regarding the reasonableness of the charges"). Special masters have discretion to discern whether any of the requested hours are "excessive, redundant, or otherwise unnecessary." Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (internal quotations and citations omitted). In contemplating reductions, special masters have the latitude to "consider their prior experience in reviewing fee applications and even dealings with the specific attorney involved." Savin, 85 Fed. Cl. at 315. It is further within the purview of special masters to reduce a fee request sua sponte, apart from or in the absence of respondent's objections, and without providing petitioner notice or opportunity to respond. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009); Estate of Bondi by Shoemaker v. Sec'y of Health & Human Servs., No. 12-476V, 2017 WL 1046526 at *2 (Fed. Cl. Spec. Mstr. Feb. 23, 2017).
Petitioner requests the following hourly rates:
Petitioner's application includes requested rates for years in which certain staff members did not bill time in this case.
The rates requested for Mr. Sadaka and Mr. Pinon have been evaluated and awarded to them in other Vaccine Act cases. See, e.g., Siciliano v. Sec'y of Health & Human Servs., No. 15-253V, 2017 WL 1174449 at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2017); Jones v. Sec'y of Health & Human Servs., No. 12-875V, 2017 WL 2061471 at *3 (Fed. Cl. Spec. Mstr. Apr. 18, 2017). The undersigned finds these rates reasonable and awards them herein.
After consideration, the undersigned finds it necessary to adjust the rate requested for Ms. Sweeney in 2012. The 2012 rate for Ms. Sweeney is reduced from $192.60 to $185.47. Ms. Sweeney was admitted to practice in New Jersey in 2012. Application at 6. The undersigned finds this reduced rate appropriate based on Ms. Sweeney's experience in 2012, and this rate is consistent with that awarded to her in Jones for 2012. See Jones, 2017 WL 2061471 at *3.
Petitioner requests reimbursement for time billed by five paralegals.
Accordingly, the undersigned awards the following hourly rates:
The undersigned has previously found it appropriate to reduce fees that are excessive or duplicative. J.W. v. Sec'y of Health & Human Servs., No. 15-551V, 2017 WL 877278 at *6 (Fed. Cl. Spec. Mstr. Feb. 10, 2017) (reducing attorneys' and law students' overall fees by 20 percent due to excessive and duplicative billing); Davis v. Sec'y of Health & Human Servs., No. 15-159V, 2017 WL 877277 at *7 (Fed. Cl. Spec. Mstr. Feb. 7, 2017) (reducing attorneys' fees and law students' fees by 20 percent due to excessive and duplicative billing). As many of petitioner's billing entries are excessive and one is duplicative, the undersigned finds cause to reduce the fee request.
Most significantly, petitioner's billing records contain over 80 entries amounting to nearly 38 hours and approximately $5,470.53 in requested fees for time spent requesting, receiving, and reviewing medical records, and communicating with and researching medical providers.
Petitioner's billing records also contain a duplicative entry. On September 27, 2016, Mr. Sadaka billed 0.7 hours for, inter alia, "plan and prepare for status conference; appear for/attend status conference." Ex. A at 13. Mr. Sadaka billed an additional 0.9 hours on September 27, 2016 for "[p]lan/prepare for status conference. Appear for/attend status conference; draft/revise notes to file." Ex. A at 14. Because petitioner may not submit duplicative charges, the undersigned finds cause to reduce petitioner's 0.7 hour entry for $254.07.
The Vaccine Program does not permit billing for clerical, administrative, or secretarial work. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (finding that services of a secretarial or clerical nature "should be considered as normal overhead office costs included within the attorneys' fee rates"); J.W., 2017 WL 877278 at *3 ("It is well established that billing for clerical and other secretarial work is not permitted in the Vaccine Program").
Petitioner's counsel billed approximately 1.3 paralegal hours for mailing.
As noted above, a petitioner's application for fees and costs must sufficiently detail the time billed so as to enable the special master to determine the reasonableness of the amount requested. Bell, 18 Cl. Ct. at 760; Rodriguez, 2009 WL 2568468 at *8. The undersigned has previously found it reasonable to reduce attorneys' fees for vagueness, and finds it necessary to do so herein. Estate of Bondi, 2017 WL 1046526 at *3 (reducing a fee award for vagueness when petitioner's billing entries "did not include sufficient detail about what tasks were being performed and why"); Davis, 2017 WL 877277 at *4 (reducing petitioner's fee award for vagueness).
The undersigned finds numerous vague billing entries made in this case. Petitioner billed approximately 6.4 hours of attorney and paralegal time over 20 separate entries to perform case review (occasionally referred to as "Review/analyze case file") and draft/revise directives. These activities alone result in over $2,100.00 in fees. Ex. A at 1-15. Counsel's vague descriptions do not provide the undersigned sufficient means to effectively evaluate the reasonableness of the time spent and work performed, and the undersigned thus finds cause to reduce petitioner's fee award.
For all the reasons stated above, the undersigned reduces petitioner's entire fee award by 10 percent. See Estate of Bondi, 2017 WL 1046526 at *4 (reducing petitioner's fee award by 10 percent); Raymo v. Sec'y of Health & Human Servs., No. 11-654V, 2016 WL 7212323 at *18 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reducing petitioner's fee award by 20 percent); Nelson, 2015 WL 9302973 at *2 ("It is within the special master's discretion to reduce the number of hours by a percentage of the amount charged, rather than making a line-by-line determination regarding the reasonableness of the charges").
Petitioner requests reimbursement for attorney costs in the amount of $3,183.61. After reviewing petitioner's invoices, 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.
