Filed: Sep. 21, 2017
Latest Update: Sep. 21, 2017
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . On September 26, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, et seq., 2 (the "Vaccine Act"). Petitioner alleged that she suffered a shoulder injury caused-in-fact by her January 9, 2013 influenza vaccination. On March 23, 2017, the undersigned issued a decision awarding compensation to petitioner based on resp
Summary: UNPUBLISHED DECISION ON ATTORNEYS' FEES AND COSTS 1 NORA BETH DORSEY , Chief Special Master . On September 26, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. 300aa-10, et seq., 2 (the "Vaccine Act"). Petitioner alleged that she suffered a shoulder injury caused-in-fact by her January 9, 2013 influenza vaccination. On March 23, 2017, the undersigned issued a decision awarding compensation to petitioner based on respo..
More
UNPUBLISHED
DECISION ON ATTORNEYS' FEES AND COSTS1
NORA BETH DORSEY, Chief Special Master.
On September 26, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the "Vaccine Act"). Petitioner alleged that she suffered a shoulder injury caused-in-fact by her January 9, 2013 influenza vaccination. On March 23, 2017, the undersigned issued a decision awarding compensation to petitioner based on respondent's proffer. (ECF No. 18.)
On August 22, 2017, petitioner filed a motion for attorneys' fees and costs. (ECF No. 22.) Petitioner requests attorneys' fees in the amount of $13,187.84 and attorneys' costs in the amount of $2,122.39. (Id. at 1.) In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Thus, the total amount requested is $15,310.23.
On August 28, 2017, respondent filed a response to petitioner's motion. (ECF No. 23.) 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. Petitioner's counsel seeks hourly rates of $350 per hour for work performed in 2015-2016 and $358 for work performed in 2017. (ECF No. 22-1.) However, petitioner's counsel has previously billed and been awarded fees at a rate of $312 per hour for 2015 and 2016. E.g. Opperman v. HHS, No. 14-1222, 2017 WL 2883891 (Fed. Cl. Spec. Mstr. Jan. 31, 2017). The undersigned concludes that $358 per hour is a reasonable rate for work performed in 2017, but reduces the rate for 2015 and 2016 to $312 per hour, consistent with counsel's prior contemporaneous cases. See, e.g. Simmons v. HHS, No. 11-216V, 2016 WL 6156330 (Fed. Cl. Spec. Mstr. Sept. 28, 2016)(finding that petitioner's counsel could not apply an attorney rate increase retroactively for work previously performed). This results in a reduction of $813.96.3
Additionally, the undersigned reduces petitioner's requested costs by $665.50. This reflects the $400.00 Court of Federal Claims filing fee for petitioner's prior vaccine petition, which was dismissed due to a pending civil action, as well as the $265.50 filing fee for that civil action in Racine County Court. The undersigned does not find that these filing fees were reasonably incurred in proceeding on the petition. Stewart v. HHS, No. 06-287V, 2011 WL 5330388, at *22-25 (Fed. Cl. Spec. Mstr. Oct. 17, 2011 (citing §15(e)(1)(b) and determining that "costs associated with previous, civil litigation unrelated to [the proceedings under the Vaccine Act] are not compensable"); Yang v. HHS, No. 10-33V, 2013 WL 4875120, at *5 (Fed. Cl. Spec. Mstr. Aug. 22, 2013) (holding that "petitioner's counsel's requests for attorneys' fees for work that was created by counsel's mistakes are unreasonable."); Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992) (noting that "[n]ot only must any request for reimbursement of attorneys' fees be reasonable, so also must any request for reimbursement of costs.")
In the undersigned's experience, the request otherwise appears reasonable, and the undersigned finds no further cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). Based on the reasonableness of petitioner's request, the undersigned GRANTS petitioner's motion for attorneys' fees and costs.
Accordingly, the undersigned awards the total of $13,830.774 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel Jerome A. Konkel, Esq.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
