Judges: Nora Beth Dorsey
Filed: Oct. 10, 2019
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0887V Filed: May 17, 2019 UNPUBLISHED MICHAEL L. WINTERS, Petitioner, v. Special Processing Unit (SPU); Attorneys’ Fees and Costs SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Justin Glenn Day, Greg Coleman Law, PC, Knoxville, TN, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On June 29, 2017,
Summary: In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0887V Filed: May 17, 2019 UNPUBLISHED MICHAEL L. WINTERS, Petitioner, v. Special Processing Unit (SPU); Attorneys’ Fees and Costs SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Justin Glenn Day, Greg Coleman Law, PC, Knoxville, TN, for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On June 29, 2017, ..
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0887V
Filed: May 17, 2019
UNPUBLISHED
MICHAEL L. WINTERS,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Justin Glenn Day, Greg Coleman Law, PC, Knoxville, TN, for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On June 29, 2017, 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 alleges that he suffered a shoulder injury related to vaccine
administration (“SIRVA”), specifically adhesive capsulitis (frozen shoulder), after
receiving the influenza vaccine on October 22, 2014. Petition at 1, ¶¶ 2, 11-12. On July
17, 2018, the undersigned issued a decision awarding compensation to petitioner based
on the parties’ stipulation. ECF No. 37.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the Internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, the undersigned is required to post it 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).
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On February 19, 2019, petitioner filed a motion for attorneys’ fees and costs.
ECF No. 41. 3 Petitioner requests attorneys’ fees in the amount of $24,747.50 and
attorneys’ costs in the amount of $943.26. ECF No. 41-1 at 7 and 9. In compliance
with General Order #9, petitioner filed a signed statement indicating that petitioner
incurred no out-of-pocket expenses. ECF No. 44. Thus, the total amount requested is
$25,690.76.
On March 25, 2019, respondent filed a response to petitioner’s motion. ECF No.
42. Respondent states 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 filed no reply.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). 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. Cir. 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). 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 Health & Human Servs.,
102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.”
Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
3Petitioner’s motion for attorneys’ fees was filed outside the 180 deadline for filing after judgment. The
undersigned will l review petitioner’s motion and award attorneys’ fees and costs as if timely filed but
cautions that in the future, petitioner should file a motion for extension of time.
2
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.
II. Attorneys’ Fees
Upon review of the billing records the undersigned reduces the request for
attorneys’ fees and costs due to excessive hourly rates, paralegal tasks billed at
attorney rates, administrative charges, expert costs and copy charges.
A. Hourly Rates
Petitioner requests compensation for the attorneys who worked on his case at
the following rates: Justin Day at the rate of $450 per hour for all time worked, Adam A.
Edwards at the rate of $550 per hour for all time worked, and Celia F. Hastings at the
rate of $400 per hour for all time worked.
The undersigned finds the requested rates excessive based on their overall legal
experience, the quality of work performed, and their lack of experience in the Vaccine
Program. See McCulloch v. Health and Human Services, No. 09–293V, 2015 WL
5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are
paramount in deciding a reasonable forum hourly rate: experience in the Vaccine
Program, overall legal experience, the quality of work performed, and the reputation in
the legal community and community at large). The undersigned has utilized the OSM
Attorneys’ Forum Hourly Rate Schedules for years 2015 – 2018 in reviewing and setting
appropriate hourly rates in this case. These schedules are available on the U.S. Court
of Federal Claims website at www.cofc.uscourts.gov/node/2914. The undersigned
incorporates by reference all of the explanatory notes contained in these rate
schedules. See also McCulloch,
2015 WL 5634323, at *19.
i. Justin G. Day
Mr. Day has been a licensed attorney in Tennessee since November 2014. ECF
No. 45 at 1. This places him in the range of attorneys’ with less than 4 years’
experience for time billed in 2015 – 2016 and in the range of attorneys’ with 4-7 years’
experience for time billed in 2017 and 2018. Given Mr. Day’s inexperience in the
Vaccine Program, a reduction of his requested rates is deemed appropriate. 4 See
McCulloch, 2015 WL 5634323, at *17. Mr. Day’s rate is based on his firm’s standard
billing rate which exceeds the appropriate experience ranges on the OSM Forum Hourly
Rate Schedule. ECF No. 53 Ex. 1. Mr. Day lacks the experience in the Vaccine
Program to support the requested rate per the OSM Attorney’s Forum Hourly Rate
Schedules. Based on the undersigned’s experience and application of the factors
discussed in McCulloch, Mr. Day’s requested hourly rate is reduced to the following:
4 Mr. Day had one prior case in the Vaccine Program. At the time of this decision a motion for attorneys’
fees and costs had not been filed in the previous case. Currently, Mr. Day has two active cases.
3
• $185 per hour for work performed in 2015
• $200 per hour for work performed in 2016
• $230 per hour for work performed in 2017
• $240 per hour for work performed in 2018
This results in a reduction of reduction of attorneys’ fees requested in the amount
of $2,875.50. 5
ii. Adam A. Edwards
As with Mr. Day, attorney Adam A. Edward’s requested hourly rate of $550.00 is
outside of his experience range in the OSM Hourly Rate Schedule. Mr. Edwards has
been licensed in Tennessee since 2004 which places him in the range of attorneys’ with
11 – 19 years’ experience through the duration of this case. Yet, Mr. Edwards has
requested a rate that exceeds even the range for attorneys’ with over 31 years’
experience. Given that Mr. Edwards appears to have assisted with this case and is not
barred in the Court of Federal Claims, a reduction of the requested rate is deemed
appropriate. See McCulloch, 2015 WL 5634323, at *17 (stating the following factors
are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine
Program, overall legal experience, the quality of work performed, and the reputation in
the legal community and community at large) . Based on the undersigned’s experience
and application of the factors discussed in McCulloch, Mr. Edwards hourly rates are
reduced to the following rates:
• $300 per hour for work performed in 2015
• $315 per hour for work performed in 2016
• $330 per hour for work performed in 2017
• $345 per hour for work performed in 2018
This results in a reduction of reduction of attorneys’ fees requested in the amount
of $3,956.50. 6
iii. Celia F. Hastings
Celia F. Hastings has been a licensed attorney since 1979, placing her in the
experience range of attorneys’ with over 31 years of experience. ECF No. 45 at 1.
Although the requested rate falls within the correct experience ranges, it is on the high
5This amount consists of ($450 - $185 = $265 x 3.5 hrs = $927.50) + ($450 - $200 = $250 x 4 hrs =
$1000) + ($450 - $220 = $230 x 3.3 hrs = $759) + ($450 - $240 = $210 x 0.9 hrs = $189) = $2,875.50.
6This amount consists of ($550 - $300 = $250 x 13.45 hrs = $3,362.50) + ($550 - $330 = $220 x 2.70 hrs
= $594) = $3,956.50.
4
end of the range for the years 2015 and 2016. Ms. Hastings was not barred in the
Court of Federal Claims during these years and lacks the experience in the Vaccine
Program to support the requested rates. ECF No. 45 at 1. The undersigned reduces
the hourly rate for the years 2015 and 2016 to $385 per hour. For the years 2017 and
2018, the undersigned shall award the requested rate of $400 per hour.
This results in a reduction of reduction of attorneys’ fees requested in the amount
of $15.00. 7
B. Paralegal Tasks
Upon review of the billing records submitted, several entries are billed at the
attorney rate for tasks considered paralegal work. “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 Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl.
Spec. Mstr. June 15, 2009). “[T]he 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 Health & Human Servs., No. XX-XXXXV,
2010 WL
529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Examples of these entries include:
• October 13, 2015 (0.10 hrs) “Letter to PCP for updated medical
records”
• February 23, 2017 (0.25 hrs) “Request medical records”
• May 19, 2017 (1.20) “Finish summarizing and Bates stamping
medical records”
• February 8, 2018 (1.00 hrs) “re-examine records for Summit Clinic
discrepancy; call to Summit; Request for additional records from
Tennova by fax”
• March 1, 2018 (0.25 hrs) “Prepare and mail medical records
request to Dr. Weast”
• March 19, 2018 (0.50 hrs) “Prepare and file Exhibit 10- Premier
Surgical Records”
ECF No. 41-1 at 2-5. 8
The undersigned reduces the hourly rate on the entries that are considered
paralegal to $135.00 per hour. This reduces the request for attorneys’ fees in the
amount of $3,377.25. 9
7 This amount consists of $400 - $385 x 1 hrs = $15.00.
8 These are merely examples and not an exhaustive list.
9 This amount consists of the already reduced hourly rate of ($385 - $135 = $250 x 0.1 hours = $25) and
($400 - $135 = $265 x 12.65 hrs = $3,352.25) = $3,377.25.
5
C. Administrative Entries
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the
attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of
Health & Human Servs., No. 08-579V,
2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V,
2016 WL
720969, at *5 (citing
Rochester, 18 Cl. Ct. at 387) (Fed. Cl. Spec. Mstr. February 4,
2016). Examples of these entries include:
• October 13, 2015 (0.20 hrs) “Add contacts and open electronic file”
• October 19, 2015 (0.20 hrs) “Scan documents to electronic file”
• November 16, 2017 (0.30 hrs) “Download all court documents to
electronic file”
• May 19, 2018 (0.10 hrs) “Receive, review and file court email
regarding Docket 32”
ECF No. 41-1 at 2, 4 and 6. 10
The undersigned reduces the request for attorneys’ fees in the amount of
$1,094.00, 11 the total of the tasks considered administrative.
III. Attorneys’ Costs
Petitioner requests reimbursement for attorneys’ costs in the amount of $943.26.
On March 25, 2019, an order was issued for petitioner to file “[i]nvoices, receipts or
other supporting documentation for all requested attorney costs”. ECF No. 43. On April
9, 2019, petitioner filed the documentation requested in the order. ECF No. 45. After
reviewing petitioner’s invoices, a receipt for medical records in the amount of $28.55
was not included in the receipts submitted. ECF No. 41-1 at 9. The undersigned
reduces the request for attorneys’ costs by $28.55.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.
10 These are merely examples and not an exhaustive list.
11This amount consists of ($385 x 0.40 hrs = $154) + ($400 x 2.35 hrs = $940) = $1,094.00. The totals
were calculated using the already reduced hourly rates.
6
Requested attorneys’ fees: $24,747.50
Less reduction for Justin G. Day’s Rate: - 2,875.50
Less reduction for Adam A. Edwards’ Rate: - 3,956.50
Less reduction for Celia F. Hastings’ Rate: - 15.00
Less reduction for Paralegal Rates: - 3,377.25
Less entries considered administrative: - 1,094.00
Adjusted Fees Total: $13,429.25
Requested attorneys’ costs: $943.26
Reductions - 28.55
Adjusted Costs Total: $914.71
Total Attorneys’ Fees and Costs Awarded: $14,343.96
Accordingly, the undersigned awards the total of $14,343.96 12 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel,
Justin Glenn Day.
The clerk of the court shall enter judgment in accordance herewith. 13
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
12 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses
all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would
be in addition to the amount awarded herein. See generally, Beck v. Sec’y of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir. 1991).
13Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
7
