NORA BETH 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.,
On February 19, 2019, petitioner filed a motion for attorneys' fees and costs. ECF No. 41.
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.
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, 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.
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.
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.
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.
This results in a reduction of reduction of attorneys' fees requested in the amount of
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:
This results in a reduction of reduction of attorneys' fees requested in the amount of
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 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
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:
ECF No. 41-1 at 2-5.
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
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:
ECF No. 41-1 at 2, 4 and 6.
The undersigned reduces the request for attorneys' fees in the amount of
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
Based on the reasonableness of petitioner's request, the undersigned
The clerk of the court shall enter judgment in accordance herewith.
