Opinion

Callejas v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Nov 27, 2023
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 32.9%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-1767V

MAYRA CALLEJAS,

Chief Special Master Corcoran

Petitioner,

v. Filed: October 24, 2023

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On December 4, 2020, Mayra Callejas 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 alleged that she suffered a Shoulder Injury Related to Vaccine

Administration as a result of an influenza vaccine administered to her on December 12,

2019. Petition at 1. On May 5, 2023, I issued a decision determining entitlement and

awarding damages to Petitioner, following briefing and expedited Motions Day argument

by the parties. ECF No. 51.

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

inf ormation, 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 f rom 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 ref erences 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 $59,497.24 (representing $57,536.00 for fees and $1,961.24 for costs). Petitioner’s

Application for Fees and Costs filed May 15, 2023, ECF No. 55. In accordance with

General Order No. 9, Petitioner filed a signed statement indicating that she incurred no

out-of-pocket expenses. Id. at 69.

Respondent reacted to the motion on May 16, 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. 56. Petitioner did not file a reply thereafter.

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

connection, I find reductions in the amount of fees and costs 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.

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

2

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

Petitioner requests hourly rates for attorneys and paralegals performing work in

this matter as follows:

2019 2020 2021 2022 2023

David J. Carney, Esq. $325 $350 $375 $400 $425

Adam M. Green, Esq. X X X $425 X

Paralegals $145 $145 $145 $145 $175

Evan R. Baker, Law Clerk X X $175 X X

The hourly rates requested for Mr. Carney, Mr. Green and paralegals for all time

billed in the 2019-23 period are reasonable and consistent with prior determinations and

shall therefore be awarded herein. The 2021 hourly rate requested for Ms. Baker,

however, requires adjustment.

Categorized as a law clerk, Evan Baker was a law student who began working at

the firm during the summer of 2021. ECF No. 55 at 9. She has remained at the firm and

plans to take the bar exam in July 2023. Id. However, the hourly rate for her 2021 work

exceeds the student hourly rate paid in other cases - $150. E.g., Wnuk v. Sec’y of Health

& Hum. Servs., No. 21-0679V, 2023 WL 4195520, at *2 (Fed. Cl. Spec. Mstr. May 26,

2023). Accordingly, I shall instead compensate Evan Baker’s 2021 work at the rate of

$150 per hour. This reduces the amount of fees to be awarded by $372.50. 3

Additionally, a few of the tasks performed by Mr. Carney are more properly billed

using a paralegal rate. 4 “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

3

This amount consists of $175 - $150 = $25 x 14.9 hrs = $372.50.

4

These entries describing the preparation of a notice of f iling, the bates stamping medical records, and

f iling both documents are dated as f ollows:12/14/20, 4/16/21, 1/27/22, 3/18/22, and 9/13/22. ECF No. 55

at 16-17, 19, 20, 24.

3

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 $447.00. 5

B. Billed Hours

Regarding the number of hours billed, some adjustments also are merited. First,

attorney Adam Green billed 1.8 hours on May 26, 2022, for researching and drafting the

“Legal Standard” section of the damages brief. ECF No. 55 at 22. However, the resulting

section is virtually identical to the content of previous briefs filed by Petitioner’s counsel

in other cases. Review of the damages briefing from the same counsel from 2021 to the

present, and filed in 29 other SPU SIRVA cases requiring a substantive damages

decision, reveals multiple similarities related to the “Legal Standard” sections containing

discussions of authority existing for at least ten years - with only minor changes, or slight,

non-substantive differences in how paragraphs were ordered. For example, the briefing

in this case is strikingly similar to what counsel filed in 2021 (the year prior to the briefing

in this case) in Boyd v. Sec’y of Health & Hum. Servs., No. 19-1107V at ECF No. 29;

McCabe v. Sec’y of Health & Hum. Servs., No. 19-1916V at ECF No. 26; Hartman v.

Sec’y of Health & Hum. Servs., No. 19-1106V at ECF No. 32; Niemi v. Sec’y of Health &

Hum. Servs., No. 19-1535V at ECF No. 31; Morrison-Langehough v. Sec’y of Health &

Hum. Servs., No. 19-1103V at ECF No. 42; Carlow v. Sec’y of Health & Hum. Servs., No.

19-1449V at ECF No. 25; Buckley v. Sec’y of Health & Hum. Servs., No. 19-1602V at

ECF No. 23; Guerrero v. Sec’y of Health & Hum. Servs., No. 20-0851V at ECF No. 30;

Clappe-Mixell v. Sec’y of Health & Hum. Servs., No. 19-1538V at ECF No. 36; Black v.

Sec’y of Health & Hum. Servs., No. 20-0777V at ECF No. 24; Miller v. Sec’y of Health &

Hum. Servs., No. 20-0604V at ECF No. 31; Klausen v. Sec’y of Health & Hum. Servs.,

No. 19-1977V at ECF No. 44 (in chronological order). Attorney’s fees which included 1.4

to 1.8 hours, respectively, for work by Mr. Green, have already been awarded in those

cases.

“If an attorney may not bill his client for this task, the attorney may also not bill the

Program for this task.” Carter v. Sec’y of Health & Hum. Servs., No. 04-1500V, 2007 WL

2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007). While I do not fault counsel for

recycling “boilerplate” in briefs that is relevant in different cases, it is not appropriate to

bill fully for such work either when it is not novel (or only requires minor updating).

Accordingly, I will award only .5 hours of time for this task, reducing the time billed by 1.3

5

This amount consists of ($350 - $145) x .6 hrs + ($375 - $145) x .3 hrs + ($400 - $145) x 1.0 hrs = $447.00.

4

hours. This results in a reduction of $552.50. 6

Second, I deem the total amount of time devoted to briefing entitlement and

damages to be excessive. See Status Report, filed Apr. 6, 2022, ECF No. 35 (reporting

an impasse in settlement discussions); Petitioner’s Motion for a Ruling on the Record and

Brief on Damages, filed June 3, 2022, ECF No. 39; Petitioner’s Reply Brief, filed Aug. 16,

2022, ECF No. 44; Hearing Minute entry dated May 5, 2023 (regarding proceedings on

April 21, 2023). After accounting for the reduction already mentioned, Petitioner’s counsel

expended approximately 30.00 hours drafting the entitlement and damages brief and

22.30 hours drafting the reply brief, totaling 52.30 7 hours. ECF No. 55 at 21-24. In

addition, drafting these briefs involved the work of two attorneys, billing between $400 to

$425 per hour, and thus suggesting some degree of unnecessary overlap/inefficiency

compounding the excessive cost associated with this task.

My above calculation does not include time spent preparing the initial demand

which would have informed this later work – 18.20 hours – and I am therefore awarding

fees associated with that task in full. 8 Nor am I counting time spent communicating with

Petitioner and preparing additional supporting documentation such as affidavits or signed

declarations, which is also being awarded in full. See, e.g., ECF No. 55 at 22 (third entry

dated 5/26/22)).

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

in this case, once the sum in question is calculated, and where the issues presented are

not complex. I have identified numerous cases (which may reasonably be compared to

time spent in this matter), 9 in which attorneys have accomplished this task in about half

the time. 10 See, e.g., Kestner v. Sec’y of Health & Hum. Servs., No. 20-0025V (June 22,

2023) (6.00 and 4.10 hours billed for drafting a damages brief and responsive damages

6

This amount is calculated as f ollows: 1.3 hrs x $425 = $552.50.

7

This total is calculated as follows: 27.10 hours billed on: 5/22/22, 5/23/22, 5/24/22, 5/25/22, 5/26/22 (two

entries – second being the remaining .5 hours), 6/1/22 (two entries), 6/2/22, by Adam Green at a rate of

$425; and 25.20 hours billed on: 6/2/22, 6/3/22, 8/6/22, 8/7/22, 8/8/22, 8/9/22, 8/12/22, 8/14/22, and 8/15/22

by David Carney at a rate of $400.

8

This time was billed by Evan Baker at a rate of $175 (reduced to $150) and David Carney at a rate of

$375. See ECF No. 55 at 18-19.

9

Special masters may use comparisons to attorneys perf orming 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).

10

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

at https://www.govinf o.gov/app/collection/uscourts/national/cof c (last visited July 21, 2023).

5

brief, respectively); Juno v. Sec’y of Health & Hum. Servs., No. 18-0643V (June 14, 2023)

(5.8 hours billed for drafting a damages brief); Deutsch v. Sec’y of Health & Hum. Servs.,

No. 18-0527V (June 12, 2023) (7.4 and 4.4 hours billed for drafting a damages brief and

responsive damages brief, respectively); Piccolotti v. Sec’y of Health & Hum. Servs., No.

20-0135V (June 8, 2023) (11.6 and 3.8 hours billed for drafting a damages brief and

responsive damages brief, respectively); Edminister v. Sec’y of Health & Hum. Servs.,

No. 19-0184V (May 30, 2023) (15.3 and 3.5 hours billed for drafting a damages brief and

responsive damages brief, respectively); Aponte v. Sec’y of Health & Hum. Servs., No.

20-1031V (May 18, 2023) (6.9 hours billed for drafting a damages brief); Gray v. Sec’y of

Health & Hum. Servs., No. 20-1708V (May 18, 2023) (5 hours billed for drafting a

damages brief); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023)

(9.8 hours billed for drafting a damages brief); Rice-Hansen v. Sec’y of Health & Hum.

Servs., No. 20-1338V (May 17, 2023) (12.9 and 6.1 hours billed for drafting a damages

brief and responsive damages brief, respectively); Horky v. Sec’y of Health & Hum.

Servs., No. 20-0239V (May 18, 2023) (5.8 hours billed for drafting a damages brief);

Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V (May 4, 2023) (9.5 and 2.5

hours billed for drafting a damages brief and responsive damages brief, respectively).

The circumstances of this case did not warrant devoting so much time to briefing.

The primary areas of dispute involved one requirement for a Table SIRVA injury 11 and

the appropriate amount of compensation for Petitioner’s past pain and suffering. See

Callejas v. Sec’y of Health & Hum. Servs., No. 20-1767V (June 9, 2023). 12 Regarding

damages, the parties’ views differed by $37,500.00 - Petitioner sought $95,000.00, and

Respondent countered with $57,500.00. Id. at 10-11. I ultimately awarded an amount

closer to that proposed by Respondent ($67,500.00), differing by only $10,000.00 –

further underscoring the extent to which Petitioner’s efforts in this behalf had a futile

quality (since I ultimately found the higher figure was not adequately defended).

Of course, having prevailed in this case, a fees award is generally appropriate.

ECF No. 51. 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 briefing (a total of 52.30 hours, or

$21,597.50) by thirty percent. Such an across-the-board reduction (which I am

11

42 C.F.R. § 100.3(c)(10)(iii) (2017) (regarding the location of a petitioner’s pain and suffering and limited

range of motion).

12

This decision can be f ound on the United States Court of Federal Claims website, and/or

at https://www.govinf o.gov/app/collection/uscourts/national/cof c (last visited Oct. 20, 2023).

6

empowered to adopt) 13 fairly captures the overbilling evidenced by this work, without

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

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

results in a reduction of $6,479.25. 14

ATTORNEY COSTS

Petitioner requests $1,961.24 in overall costs. ECF No. 55 at 27. I find the majority

of these costs reasonable with the exception of $146.85 in costs incurred for “[s]canning

charges for medical records, letters, intake materials, client documents for case

processing.” Id. at 33. Such overhead expenses are inherent in operating a law firm and

are thus not compensable. Accordingly, the attorney’s costs are reduced by $146.85.

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. I award a total of $51,499.14 (representing $49,684.75 in

attorney’s fees and $1,814.39 in attorney’s costs) as a lump sum in the form of a

check jointly payable to Petitioner and Petitioner’s counsel, David J. Carney. 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. 15

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

13

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

suf ficiently 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).

14

This amount is calculated as follows: (27.10 hrs x $425 x .30) + (25.20 hrs x $400 x .30) = $6,479.25

15

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

renouncing their right to seek review.

7

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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