KATHERINE E. OLER, Special Master.
On November 12, 2015, Erin Moore ("Petitioner"), on behalf of her daughter, P.C.S., filed a petition for compensation in the National Vaccine Injury Compensation Program ("the Program"),
On November 21, 2017, Petitioner filed a motion for attorneys' fees and costs (AFC Motion), requesting $34,079.10 in attorneys' fees for work performed by her Vaccine Act attorneys ("the Maglio Firm" attorneys), $1,511.93 in litigation costs incurred by the Maglio Firm, and $6,300.00 in attorneys' fees incurred for the establishment of a guardianship for P.C.S.'s vaccine injury award, for a total of $41,891.03. Petitioner's ("Petr's") Application ("App.") dated November 21, 2017, ECF No. 43 at 1-2.
On December 1, 2017, Respondent filed a response to Petitioner's AFC motion. See Respondent's Response, dated December 1, 2017, ECF No. 44. 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. Additionally, he "respectfully recommends that [I] exercise [my] discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
Petitioner filed a reply to Respondent's response on December 5, 2017. ECF No. 45. Petitioner argues (1) that Respondent's position regarding Petitioner's AFC Motion is "overly burdensome on the Court and prejudices Petitioner" (id. at 2); (2) that "Petitioner has met her burden of establishing reasonable fees and costs" (id. at 3); and (3) that her "attorneys' fees should be paid and her case costs reimbursed" (id. at 5).
This case was transferred to my docket on December 6, 2017. ECF No. 46. This matter is now ripe for a decision.
The Vaccine Act permits an award of "reasonable attorneys' fees" and "other costs." § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is automatic. Id.; see also Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Thus, as a successful Vaccine Act petitioner, Ms. Moore is entitled to a fees and costs award.
The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes "reasonable attorneys' fees" and "other costs" under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, "[t]he initial estimate of a reasonable attorney's fee" is calculated 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)). That product is then adjusted upward or downward based on other specific findings. Id.
Special masters have substantial discretion in awarding fees and may adjust a fee request sua sponte, apart from objections raised by Respondent, and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). Special masters need not engage in a line-by-line analysis of a petitioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
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 at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, 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 Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F.3d at 1349). There is a "limited exception" that provides for attorney's fees to be awarded at local hourly rates when "the bulk of the attorney's work is done outside the forum jurisdiction" and "there is a very significant difference" between the local hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
The majority of the Maglio Firm's work on this case was performed in Washington, D.C.,
Petitioner requests that Ms. Wilson's hourly rates be set at $301.00 for work performed in 2016, and $308.00 for work performed in 2017. See Ex. 17 at 9-18. I find that the appropriate hourly rate for work performed in 2016 is $275.00.
In 2017, Ms. Wilson had five years of experience in practice. The 2017 Hourly Rate Fee Schedule sets forth an attorneys' fees range of $230-$307 per hour for an attorney of Ms. Wilsons' experience in 2017. See Office of Special Masters, Attorneys' Forum Hourly Rate Fee Schedule: 2017, supra at n.5. Ms. Wilson's requested hourly rate of $308.00 is outside that range and will be reduced accordingly. Special Master Sanders previously set Ms. Wilson's rate to $290.00 per hour for work performed in 2017, basing that hourly rate on Ms. Wilson's experience and background. See Noblett v. Sec'y of Health & Human Servs., No. 14-969V, 2017 WL 3033932 (Fed. Cl. Spec. Mstr. June 15, 2017). I find Special Master Sanders' analysis to be well-reasoned and persuasive, and will follow her approach in this instant fees request.
Accordingly, Petitioner's Vaccine Act attorneys' fees award is reduced by $
Petitioner requests that Ms. Toale be awarded an hourly rate of $300.00 for work performed in 2015, and $367.00 for work performed in 2016. See Ex. 17 at 4-9, 19. The 2015 through 2016 hourly rates are in accordance with those previously awarded to Ms. Toale, and I find them to be reasonable in this instance. See Battistone v. Sec'y of Health & Human Servs., No. 09-878V, 2017 WL 2333627 (Fed. Cl. Spec. Mstr. May 2, 2017).
Petitioner requests that Mr. Caldwell be awarded an hourly rate of $300.00 for work performed in 2015, and $367.00 for work performed in 2017. I find that his 2015 and 2017 hourly rates are reasonable, as they have been previously awarded to Mr. Caldwell in a prior case. See, e.g., Johnson v. Sec'y of Health & Human Servs., No. 10-578V, 2017 WL 1881005 (Fed. Cl. Spec. Mstr. Apr. 14, 2017).
Additionally, nine paralegals from the Maglio Firm worked on this case (see Ex. 17 at 19); for those paralegals, Petitioner requests a variety of hourly rates ranging from $95.00 to $145.00 (id.). I find those paralegal hourly rates to be reasonable and will award them in full.
Petitioner requests an hourly rate of $150.00 for Jessica Olins, a law clerk of the Maglio Firm who worked on this matter in 2017. See Ex. 17 at 17, 19. Ms. Olin's requested rate is outside the appropriate 2017 Fee Schedule hourly rate range of $128.00-$148.00 for non-attorney work performed in a Vaccine Act case. See Office of Special Masters, Attorneys' Forum Hourly Rate Fee Schedule: 2017, supra at n.5. Thus, Ms. Olin's rate will reduced to $148.00, consistent with the higher end of the appropriate 2017 range. Id.
Accordingly, Petitioner's Vaccine Act attorneys' fees award is reduced by
Attorneys' fees are awarded for 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 Health & Human Servs., 3 F.3d 1517, 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). "Unreasonably duplicative or excessive billing" includes "an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries." Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Additionally, "[w]hen case-related work is performed during travel, the time sheets should reflect the work performed and the hours spent performing it." O'Neill v. Sec'y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *7 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (quoting Gruber ex rel. Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 788 (2010)). And "[a]bsent documentation of the work performed by an attorney while he or she was traveling, the attorney will not be compensated at his or her full hourly rate for travel time." Id. Instead, those travel hours will be compensated "at one-half the standard hourly rate." Id.
Ultimately, 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." Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-29 (affirming the special master's reduction of attorney and paralegal hours); see also Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997).
In this case, Mr. Caldwell billed 2.2 hours for travel in which he did not provide any description of the case-specific work that he performed during his travel.
Based on my review of the billing records submitted with Petitioner's AFC Motion (see generally Ex. 17), I find that a number of the hours billed by the Maglio Firm were "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d at 1521. This is especially so since Petitioner's counsel of record acknowledged in her submitted affidavit that "[t]his particular case was straight forward." See Ex. 21 at 4, ¶ 23.
For example, there are billed tasks in which attorneys and/or paralegals of the Maglio Firm performed administrative tasks
Moreover, I note that there are numerous billing entries from the Maglio Firm which constitute block billing, wherein attorneys and/or paralegals billed for multiple tasks in a single entry. Some of the blocks contain time that is not compensable, along with time that is compensable.
Accordingly, for the reasons outlined above, I will reduce the total award of Petitioner's Vaccine Act attorneys' fees, with the hourly rate reductions and travel time modifications discussed above, by 10%. This results in a reduction of Petitioner's Vaccine Act attorneys' fees award of
As outlined above, for her Vaccine Act attorneys, Petitioner is awarded attorneys' fees in the amount of
Similar to attorneys' fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests $1,511.93 in attorneys' costs, consisting of filing fees, travel costs incurred by counsel in meeting with Petitioner, and service and copying costs associated with prosecuting this claim. See generally Ex. 18. After reviewing the costs invoices attached to Petitioner's AFC Motion, I find the requested litigation costs to be reasonable, and will award them in full.
Additionally, Petitioner's requested out-of-pocket litigation expense of $13.45 also appears to be reasonable, and will be awarded in full.
Petitioner also seeks $6,300.00 in attorneys' fees incurred for the establishment of a guardianship for P.C.S.'s vaccine injury award.
The Vaccine Act limits the amount of "compensation to cover petitioner's . . . costs" to those "incurred in any proceeding on [a Vaccine Act] petition." § 15(e)(1). In cases involving a minor or a decedent, such costs often include those incurred in establishing an estate or guardianship to receive and dispense the award. These costs are generally compensable under the Vaccine Act if establishing the estate or guardianship is "an essential prerequisite condition" to obtaining an award that must "be fulfilled in order for [the] award to be made." Haber ex rel. Haber v. Sec'y of Health & Human Servs., No. 09-458V, 2011 WL 839111, at *2 (Fed. Cl. Spec. Mstr. Feb. 14, 2011). In other words, the costs associated with fulfilling a condition to receiving an award that "is set by either court order or as an element of the agreed-upon settlement with respondent" are generally compensable under the Vaccine Act. Ceballos ex rel. Ceballos v. Sec'y of Health & Human Servs., No. 99-97V, 2004 WL 784910, at *20-22 (Fed. Cl. Spec. Mstr. Mar. 25, 2004); see also Kenney v. Sec'y of Health & Human Servs., No. 09-0738V, 2012 WL 6013214, at *1 (Fed. Cl. Spec. Mstr. Oct. 24, 2012) (collecting cases awarding compensation for "fees and costs of creating a guardianship or conservatorship").
As mentioned supra, Petitioner requests compensation for the attorney who established a guardianship for P.C.S.'s vaccine injury award. See AFC Motion at 2, ¶ 5; see also Ex. 19, ECF No. 43-3. Similar to the petitioner in Kenney, supra, I find that it was necessary for Ms. Moore, as the parent and natural guardian of P.C.S., to set up a legal guardianship or conservatorship before the Vaccine Act award in this case could be paid. Kenney, at *2. This is especially so since Respondent set a prerequisite in the joint stipulation, requesting proof that Petitioner has been "duly authorized to serve as [a] guardians/conservators [sic] of P.C.S.'s estate." Stipulation, ECF No. 36 at 4-5, ¶16. Thus, I find that the establishment of a guardianship in this case was "an essential prerequisite condition" to obtaining P.C.S.'s Vaccine Act award that had to "be fulfilled in order for [the] award to be made." Haber, supra, at *2. Accordingly, I will grant Petitioner's incurred attorneys' fees for the establishment of a guardianship for P.C.S.'s vaccine injury award. The amount sought for the establishment of the guardianship — $6,300.00 — was not disputed by Respondent, and appears to be reasonable. Thus, I will grant that amount in full.
Accordingly, I award the following amounts:
The Clerk of the Court is directed to enter judgment in accordance with this Decision.
Amount Reduced from Petitioner's Fees Award = Requested Fees Total for Ms. Wilson ($17,971.80) — Fees Total Awarded to Ms. Wilson ($16,570.00) =
The billing entries mentioned above are merely examples and are not exhaustive; they provide a sampling of the types of intra office communications billed by the Maglio Firm.
The above-mentioned entries are merely examples and are not exhaustive; they provide a sampling of numerous instances in which the billing entries reflect time billed for compensable tasks with non-compensable tasks.
