Judges: Laura D Millman
Filed: Mar. 27, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-117V Filed: February 28, 2018 Not for Publication ************************************* H.S., a Minor, by his PARENT AND * NATURAL GUARDIAN, * AMANDA SEIDERS, * * Petitioner, * Attorneys’ fees and costs decision; * respondent defers to Special v. * Master’s discretion * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* John R. Howie, Jr., Dallas, TX, for petitioner. Cla
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-117V Filed: February 28, 2018 Not for Publication ************************************* H.S., a Minor, by his PARENT AND * NATURAL GUARDIAN, * AMANDA SEIDERS, * * Petitioner, * Attorneys’ fees and costs decision; * respondent defers to Special v. * Master’s discretion * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************************* John R. Howie, Jr., Dallas, TX, for petitioner. Clau..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-117V
Filed: February 28, 2018
Not for Publication
*************************************
H.S., a Minor, by his PARENT AND *
NATURAL GUARDIAN, *
AMANDA SEIDERS, *
*
Petitioner, * Attorneys’ fees and costs decision;
* respondent defers to Special
v. * Master’s discretion
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
John R. Howie, Jr., Dallas, TX, for petitioner.
Claudia B. Gangi, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On September 1, 2015, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that her son, H.S., suffered acute
cerebellar ataxia due to his December 12, 2013 receipt of Haemophilus influenzae type B
(“Hib”) vaccine. Pet. Preamble. On January 26, 2018, the undersigned issued a decision
awarding damages to petitioner based on the parties’ stipulation filed on the same day.
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioners have 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
On February 1, 2018, petitioner filed an application for attorneys’ fees and costs. In her
application, petitioner requests a total of $124,468.19, comprised of $99,709.41 for attorneys’
fees and $24.758.78 for attorneys’ costs.
On February 8, 2018, respondent filed a response to petitioner’s application explaining he
is satisfied that this case meets the statutory requirements for an award of attorneys’ fees and
costs under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent “respectfully
recommends that the [undersigned] exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3.
DISCUSSION
I. Legal Standard for Attorneys’ Fees and Costs
A. In General
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d,
33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS,
3
F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”).
II. Reasonableness of Requested Attorneys’ Fees and Costs
A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d
1343, 1348. This rate is based on “the forum rate for the District of Columbia” rather than “the
rate in the geographic area of the practice of petitioner’s attorney.” Rodriguez v. Sec’y of HHS,
632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing
Avera, 515 F.3d at 1349). For cases in which
forum rates apply, McCulloch provides the framework for determining the appropriate hourly
rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v.Sec’y of
HHS, No. 09-293V,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. Counsel should not include in
their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of HHS,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart,
461 U.S. 424,
434 (1983)). Counsel must submit fee requests that include contemporaneous and specific
billing entries indicating the task performed, the number of hours expended on the task, and who
performed the task. See Savin v. Sec’y of HHS,
85 Fed. Cl. 313, 316–18 (Fed. Cl. 2008). 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. Furthermore, the special
master may reduce fees sua sponte, apart from objections raised by respondent and without
providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of HHS, 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 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 HHS,
102 Fed. Cl.
719, 729 (Fed. Cl. 2011).
1. Reasonable Hourly Rates
Petitioner requests the following hourly rates:
2014 2015 2016 2017 2018
John Howie, Jr. $300 $350 $350 $363 $376.43
Zara Najam $200 $225 $225 $233 N/A
Debbie Lupo $100 $135 $135 $140 $145.18
Elisa Bautista $40 $50 $50 $50 $65
The undersigned finds petitioner’s requested hourly rates for counsel and paralegals
reasonable.
2. Reduction of Billable Hours
“Tasks that can be completed by a paralegal or a legal assistant should not be billed at an
attorney’s rate.” Riggins v. Sec’y of HHS, No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl.
Spec. Mstr. June 15, 2009). “The rate at which such work is compensated turns not on who
ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v.
Sec’y of HHS,
2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr, Jan. 29, 2010).
In this case, Mr. Howie billed a combined 1.3 hours for tasks such as “search to locate
address for providers” and “research life care planners.” Doc 62-2, at 1, 5 (entries dated
4/14/2014 and 4/26/2015). Ms. Najam billed 0.5 hours for “labeling exhibits,” “reorganizing
exhibits,” and “finalizing exhibits.” Id. at 27-28 (entries dated 1/29/2015 and 2/5/2015). The
undersigned will pay counsel for work which could be performed by a paralegal but will do so at
a reasonable rate for a paralegal, $100.00 per hour in 2014 and $135.00 per hour in 2015. This
adjustment results in a deduction of $320.
Thus, the total amount of attorneys’ fees for Howie Law, PC is reduced by $320 and
$99,389.41 is awarded. The undersigned finds the attorneys’ costs reasonable. Therefore, the
total amount paid for attorneys’ fees and costs incurred by Howie Law, PC is $124,148.19.
CONCLUSION
Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds the majority of petitioner’s attorneys’ fees and costs request reasonable.
Accordingly, the court awards $124,148.19, representing attorneys’ fees and costs. The award
shall be in the form of a check made payable jointly to petitioner and Howie Law, PC in the
amount of $124,148.19.
3
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith.2
IT IS SO ORDERED.
Dated: February 28, 2018 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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