Opinion

Hick v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Mar 18, 2024
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 32.9%

The opinion

CORRECTED

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-0474V

ADRIANNE HICK,

Chief Special Master Corcoran

Petitioner,

v. Filed: February 12, 2024

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for

Petitioner.

Zoe Wade, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On April 21, 2020, Adrianne Hick 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 she suffered a shoulder injury related to vaccine

administration (“SIRVA”) as a result of an influenza vaccination she received on October

18, 2018. Petition at 1. On December 29, 2022, I issued a decision awarding

compensation to Petitioner based on the parties’ stipulation. ECF No. 36.

1

Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government

Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government

Services). 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, I

agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2018).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award

of $37,693.70 (representing $35,099.40 in fees, $2,194.30 in attorney’s costs, and

$400.00 for Petitioner’s out-of-pocket expenses). Petitioner’s Application for Attorneys’

Fees and Costs, filed July 28, 2023, ECF No. 42. In accordance with General Order No.

9, Petitioner filed a signed statement indicating that she incurred $400.00 in out-of-pocket

expenses. Id. at 2.

Respondent reacted to the motion on August 4, 2023, indicating that he is satisfied

that the statutory requirements for an award of attorney’s fees and costs are met in this

case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s

Response to Motion at 2-3, 3 n.2, ECF No. 43.

On August 7, 2023, Petitioner filed a reply, criticizing Respondent’s lack of a

specific response to his motion and reiterating that she is entitled to an award of attorney’s

fees and costs. Petitioner’s Reply to Respondent’s Response to Petitioner’s Application

for Fee and Costs. ECF No. 44. Petitioner insists that “Petitioner’s counsel has accurately

recorded the time spent on this case and has filed receipts for documenting the litigation

expenses incurred.” Id. at 1.

Having considered the motion along with the invoices and other proof filed in

connection, I find several reductions in the amount of fees to be awarded appropriate, for

the reasons set forth below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section

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

& Hum. 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 & Hum. 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 & Hum. 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 & Hum.

2

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 & Hum. Servs., 24 Cl.

Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees

and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. 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.

ATTORNEY FEES

A. Hourly Rates

The rates requested for work performed through the end of 2022 are reasonable

and consistent with our prior determinations, and will therefore be adopted. ECF No. 42-

1. Petitioner has also requested 2023 attorney hourly rates as follows: $463 for work

performed by Leah Durant - representing a rate increase of $22. Id. at 8. I find this hourly

rate to be reasonable.

However, a few of the tasks performed by Ms. Durant are more properly billed

using a paralegal rate.3 “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 & Hum. 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 & Hum.

Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This

reduces the amount of fees to be awarded by $470.50.4

B. Hours Billed

Regarding the number of hours billed, I deem the total amount of time devoted to

briefing damages to be excessive. See Petitioner’s Motion for Ruling on the Record, filed

3

These entries describing the preparation and filing of medical records as exhibits in this case, dated as

follows: 5/1/20, 9/24/22, and 10/29/21. ECF No. 42-1 at 2, 4-5.

4

This amount consists of ($395 - $160) x .7 hrs. + ($420 - $165) x 1.2 hrs. = $470.50.

3

Oct. 29, 2021, ECF No. 24; Petitioner’s Reply to Respondent’s Response to Petitioner’s

Motion for a Factual Ruling, filed Dec.1 2021, ECF No. 28. Petitioner’s counsel expended

approximately 34.75 hours on briefing – 19.7 hours drafting her initial motion and 15.0

hours drafting the reply. ECF No. 42 at 5-6. My above calculation does not include time

spent communicating with Petitioner, analyzing and preparing additional supporting

damages documentation such as medical records, diary entries, and affidavits or signed

declarations, which is also being awarded in full. See, e.g., ECF No. 46-1 at 7 (first entry

dated 7/30/21).

It is unreasonable for counsel to spend so much time briefing the factual issue of

onset in this case. I have identified numerous cases (which may reasonably be compared

to time spent in this matter),6 in which attorneys have accomplished a similar task in about

half the time.7 See, e.g., Alsip v. Sec’y of Health & Hum. Servs., No. 21-1815V (Mar. 22,

2023) (9.6 billed for a brief regarding severity); Law v. Sec’y of Health & Hum. Servs., No.

21-0699V (Feb. 23, 2023) (13.2 hours billed for a brief regarding severity); Smith v. Sec’y

of Health & Hum. Servs., No. 19-0314V (Apr. 26, 2022) (11 and 5 hours billed for drafting

a motion and reply for a factual ruling regarding onset).

Although I still find the amount of time expended to be excessive, I will reduce the

hours billed by a lower amount than I otherwise would apply. See, e.g., Moreland v. Sec’y

of Health & Hum. Servs., No. 18-1319V, 2023 WL 7104781 (Fed. Cl. Spec. Mstr. Aug. 31,

2023). Having prevailed in this case, a fees award is generally appropriate. But the Act

permits only an award of a reasonable amount of attorney’s fees. Accordingly, I will

reduce the sum to be awarded for damages briefing (a total of 34.7 hours, or

$11,562.50) by twenty percent. Such an across-the-board reduction (which I am

empowered to adopt)8 fairly captures the overbilling evidenced by this work, without

requiring me to act as a “green eye-shaded accountant” in identifying with specificity each

5

These totals are calculated as follows: 31.7 hours billed on 10/25/21, 10/26/21, 10/29/21, 11/26/21, and

11/30/21 by Christopher Williams at a rate of $325 and 3.0 hours billed on 11/12/21 and 12/1/21 by Leah

Durant at a rate of $420.

6

Special masters may use comparisons to attorneys performing similar tasks to determine if hours are

excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993).

7

These decisions can be found on the United States Court of Federal Claims website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Feb. 7, 2024).

8

Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is

sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017);

Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health &

Hum. Servs., 86 Fed. Cl. 201, 214 (2009).

4

objectionable task relevant to this one sub-area of work performed on the case. This

results in a reduction of $2,312.50.9

ATTORNEY COSTS

Petitioner requests $2,194.30 for attorney’s costs and $400.00 for Petitioner’s out-

of-pocket expenses. And she has provided supporting documentation for all claimed

attorney costs. ECF No. 42-2. Additionally, Respondent offered no specific objection to

the rates or amounts sought. Thus, I will award the amount of attorney’s costs sought in

full.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for

successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for

attorney’s fees and costs. Petitioner is awarded the total amount of $34,910.7010 as

follows:

• A lump sum of $34,510.70, representing reimbursement in the amount

of $32,316.40 for attorney’s fees and in the amount of $2,194.30 for

attorney’s costs, in the form of a check payable jointly to Petitioner

and Petitioner’s counsel, Leah VaSahnja Durant; and

• A lump sum of $400.00, representing reimbursement for Petitioner’s

costs, in the form of a check payable to Petitioner.

In the absence of a timely-filed motion for review (see Appendix B to the Rules of

the Court), the Clerk of Court shall enter judgment in accordance with this decision.11

IT IS SO ORDERED.

9

This amount is calculated as follows: (31.7 x $325 x .20) + (3.0 x $420 x .20) = $2,312.50.

10

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, Section 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 & Hum. Servs.,

924 F.2d 1029 (Fed. Cir.1991).

11

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice

renouncing their right to seek review.

5

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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