Opinion

Chatman v. Secretary of Health and Human Services

Court: United States Court of Federal Claims
Filed: Feb 26, 2025
Status: Unpublished
On the bench: Brian H. Corcoran
Cited by: 0 cases
Authority: More cited than 34.1%

The opinion

CORRECTED

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-2064V

MARIAH CHATMAN,

Chief Special Master Corcoran

Petitioner,

v. Filed: January 22, 2025

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On December 30, 2020, Mariah Chatman 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 (“SIRVA”). Petition at 1. The case was assigned to the Special Processing

Unit of the Office of Special Masters (the “SPU”). On July 19, 2024, I issued a ruling

finding Petitioner entitled to compensation and decision awarding damages following

briefing and expedited Motions Day argument by the parties. ECF No. 50.

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.

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 $57,022.96 (representing $54,137.40 for fees and $2,885.56 for costs). Petitioner’s

Application for Fees and Costs filed Oct. 15, 2024, ECF No. 56. In accordance with

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

out-of-pocket expenses. ECF No. 56-4.

Respondent reacted to the motion on October 16, 2024, representing 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. 57. 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

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. Grigorian and Ms. Pop 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 $412.40.4

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

briefing entitlement and damages to be excessive – although not egregiously so. See

Petitioner’s Motion for Ruling on the Record Regarding Entitlement and Damages, filed

June 21, 2023, ECF No. 42; Petitioner’s Reply to Response to Petitioner’s Motion for

Ruling on the Record Regarding Entitlement & Damages, filed Aug. 29, 2023, ECF No.

44. Petitioner’s counsel expended approximately 21.7 hours drafting the entitlement and

damages briefing and 10.7 hours drafting a reply, totaling 32.45 hours. ECF No. 56-2 at

16-17.

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

which would have informed this later work, and I am therefore awarding fees associated

with that task in full. ECF No. 56-2 at 12-13. Nor am I counting time spent communicating

3 These entries, drafting basic documents such as an exhibit list, notice of filings, statement of completion,

joint notice not to seek review, and election to accept judgment are dated as follows: 1/5/21 (two entries),

11/1/21, 12/29/21, 1/13/23, 6/20/23, 6/21/23, 7/22/24, and 7/25/24 (one-half time). ECF No. 56-2 at 8-9,15,

17, 20.

4 This amount consists of ($295 - $172) x 1.2 hrs.+ ($385 - $177) x 0.2 hrs. + ($410 - $186) x 0.2 hrs.+

($385 - $186) x 0.5 hrs. + ($460 - $197) x 0.3 hrs. = $412.40.

5 This total is calculated as follows: 32.4 hours billed on 6/12/23, 6/13/23, 6/14/23, 6/15/23 (two entries),

6/16/23, 6/18/23, 6/19/23, 6/20/23, 6/21/23, 8/21/23, 8/24/23, 8/25/23, 8/28/23 (two entries), 8/29/23, by

Alexandria Pop at a rate of $385.

with Petitioner and preparing additional supporting documentation such as affidavits or

signed declarations, which is also being awarded in full. See, e.g., id. at 17 (entry dated

6/20/22).

It is unreasonable for counsel to spend so much time briefing, even the matter of

both entitlement and damages 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 which attorneys have accomplished this task in about half the time.7

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

The primary areas of dispute involved pain onset and the appropriate amount of

compensation for Petitioner’s past pain and suffering. See 42 C.F.R. § 100.3(a)(XIV)(B)

& (c)(10)(ii) (required pain onset timing). And the parties proposed pain and suffering

award varied by only $30,000.00, with Petitioner proposing an award of $130,000.00, and

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 See, e.g., Schwalm v. Sec’y of Health & Hum. Servs., No. 21-0066V (Dec. 2, 2024) (12.2 and 6.9 hours