Opinion

Buck v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Jan 27, 2025
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 33.8%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19-1301V

MARTHA BUCK,

Chief Special Master Corcoran

Petitioner,

v. Filed: December 27, 2024

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

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

Petitioner.

Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On August 27, 2019, Martha Buck 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”) resulting from an influenza (“flu”) vaccine received in her left

deltoid on December 24, 2017. Petition at 1. On November 17, 2023, I issued a decision

awarding damages to Petitioner, based on the Respondent’s proffer. ECF No. 41.

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 $39,740.35 (representing $38,380.50 for attorney’s fees, $1,353.15 for attorney’s

costs, and $6.70 for Petitioner’s out-of-pocket litigation costs). Petitioner Application for

Attorneys’ Fees, filed May 20, 2024, ECF No. 46. In accordance with General Order No.

9, counsel for Petitioner represents that Petitioner incurred $6.70 in out-of-pocket

expenses. Id. at 2.

Respondent reacted to the Motion on May 21, 2024, stating that he is satisfied the

statutory requirements for an award of attorneys’ fees and costs have been met in this

case, but deferring resolution of the amount to be awarded to my discretion. ECF No. 48.

On May 22, 2024, Petitioner filed a reply, reiterating her previous request. ECF No. 49.

Having reviewed of the billing records submitted with Petitioner's requests, I find

reductions in the amount of fees and costs to be awarded appropriate, for the reasons

listed below.

ANALYSIS

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

successful claimants. 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.

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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

The rates requested for work performed through the end of 2024 are reasonable

and consistent with our prior determinations, and will therefore be adopted.

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 $315.20.4

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

entitlement to be excessive – although not egregiously so. See Petitioner’s Motion for a

Ruling on the Record, filed May 13, 2022, ECF No. 30; Petitioner’s Reply to Respondent’s

Response to Petitioner’s Motion for Ruling on the Record, filed Aug. 3, 2022, ECF No.

34. Petitioner’s counsel expended approximately 19.8 hours drafting the entitlement brief

and 10.7 hours drafting the reply brief, totaling 30.55 hours. ECF No. 46-1 at 6-7.

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

entitlement in this case, where the issues presented are not complex. I have identified

numerous cases (which may reasonably be compared to time spent in this matter), 6 in

3 These entries, drafting basic documents such as an exhibit list, cover sheet, and statement of completion,

are dated as follows: 9/9/19 (two entries), 1/18/22 (two entries), and 5/13/22. ECF No. 46-1 at 3, 5-6.

4 This amount consists of ($380 - $156) x 0.7 hrs. + ($441 - $177) x 0.6 hrs. = $315.20.

5 This total is calculated as follows: 23.0 hours billed on 4/27/22, 4/29/22, 5/4/22, 5/5/22, 8/1/22, and 8/2/22,

by Richard Amada, at a rate of $420; and 7.5 hours billed on 5/13/22, 7/27/22, and 8/3/22, by Leah Durant

at a rate of $441. ECF No. 46-1 at 6-7.

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).

3

which attorneys have accomplished this task in about half the time. 7 See, e.g., Fletcher

v. Sec’y of Health & Hum. Servs., No. 20-0127V (Apr. 25, 2024) (12.7 and 9.0 hours billed

for drafting an entitlement brief and responsive entitlement brief, respectively); Lamine v.

Sec’y of Health & Hum. Servs., No. 20-1560V (Mar. 27, 2024) (8.9 and 7.2 hours billed

for drafting an entitlement brief and responsive entitlement brief, respectively); Davenport

v. Sec’y of Health & Hum. Servs., No. 20-0206V (Mar. 25, 2024) (16.5 and 2.6 hours

billed for drafting an entitlement brief and a responsive entitlement brief, respectively);

Graczyk v. Sec’y of Health & Hum. Servs., No. 21-0376V (Feb. 9, 2024) (5.8 and 8.3

hours billed for drafting an entitlement brief and responsive entitlement brief,

respectively); Sisneros v. Sec’y of Health & Hum. Servs., No. 20-2070V (Feb. 8, 2024)

(0.8 and 10.5 hours billed for drafting an entitlement brief and responsive entitlement brief,

respectively); Strand v. Sec’y of Health & Hum. Servs., No. 20-0365V (Feb. 5, 2024) (7.9

and 7.2 hours billed for drafting an entitlement brief and a responsive entitlement brief,

respectively); Griswold v. Sec’y of Health & Hum. Servs., No. 19-1674V (May 30, 2024)

(5.0 and 2.0 hours billed for drafting an entitlement brief and responsive entitlement brief,

respectively); McCallum v. Sec’y of Health & Hum. Servs., No. 19-1991V (May 19, 2023)

(8 hours billed for drafting an entitlement brief); Weso v. Sec’y of Health & Hum. Servs.,

No. 19-0596V (May 16, 2024) (6.0 and 1.1 hours billed for drafting an entitlement brief

and responsive entitlement brief, respectively).

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

The only area of dispute involved pain onset. See Respondent’s Rule 4(c) Report, filed

Oct. 14, 2021, at 6-7, ECF No. 24; 42 C.F.R. § 100.3(c)(10)(ii) (2017).

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

ECF No. 44. 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 entitlement briefing (a total of 30.5

hours, or $12,967.50) by ten percent.8 Such an across-the-board reduction (which I am

empowered to adopt) 9 fairly captures the overbilling evidenced by this work, without

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 Mar. 24, 2024).

8Because the amount of excessive hours was not as egregious as in previous cases, I will reduce the hours

billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs.,

No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023).

9 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

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 $1,296.75.10

ATTORNEY AND PETITIONER COSTS

Petitioner has provided supporting documentation for all claimed costs. ECF No.

46-2. And Respondent offered no specific objection to the rates or amounts sought. ECF

No. 48. Thus, I find the amount of costs sought to be reasonable.

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 $38,128.4011 as

follows:

• A lump sum of $38,121.70, representing reimbursement in the amount

of $36,768.55 for attorney’s fees and $1,353.15 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 $6.70, 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.12

10 This amount is calculated as follows: 23.0 hrs. x $420 x .10 + 7.5 x $441 x .10 = $1,296.75.

11 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).

12 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

IT IS SO ORDERED.

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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