Brown v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

******************** *

ANNIE BROWN, *

* No. 17-253V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: September 6, 2018

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

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Milton C. Ragsdale, IV, Ragsdale LLC, Birmingham, AL, for Petitioner;

Daniel A. Principato, U.S. Department of Justice, Washington, DC, for

Respondent.

UNPUBLISHED DECISION AWARDING ATTORNEY’S FEES AND

COSTS1

Annie Brown brought a successful petition for compensation under the

National Childhood Vaccine Compensation Program. She now sees an award for

attorneys’ fees and costs. She is awarded $29,884.38.

* * *

Represented by Mr. Milton Clay Ragsdale, IV, Ms. Brown filed her petition

for compensation on February 22, 2017. Ms. Brown alleged that the influenza

(“flu”) vaccine she received on January 6, 2016, which is contained in the Vaccine

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The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal

Management and Promotion of Electronic Government Services), requires that the

Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties

have 14 days to file a motion proposing redaction of medical information or other

information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by

the special master will appear in the document posted on the website.

Injury Table, 42 C.F.R. § 100.3(a), caused her to suffer Guillain-Barré syndrome.

The parties were able to informally resolve the case, agreeing to a joint stipulation

on award of compensation that was then adopted. Decision, issued June 8, 2018.

On August 2, 2018, petitioner moved, unopposed, for reimbursement of

attorneys’ fees and costs, requesting a total of $29,923.38 (representing $28,433.00

in attorneys’ fees and $1,490.38 in attorneys’ costs). Unopposed Application for

Final Attorneys’ Fees and Costs (“Fees App.”) at 1, 3. Pursuant to General Order

No. 9, petitioner warrants that she did not personally incur any costs in pursuit of

this litigation. Id. at 3. Petitioner also warranted that she provided this fees

application to Respondent prior to filing, and that Respondent did not object to the

overall amount sought, also noting that “Respondent’s lack of objection to the

amount sought in this case should not be construed as admission, concession, or

waiver as to the hourly rates requested, the number of hours billed, or the other

litigation related costs.” Id.

This matter is now ripe for adjudication.

* * *

Because Ms. Brown received compensation, she is entitled to an award of

reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Thus, the question

at bar is whether Ms. Brown’s requested amount is reasonable.

The Federal Circuit has approved the lodestar approach to determine

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir.

2008). First, a court determines an “initial estimate . . . by ‘multiplying the number

of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id.

at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court

may make an upward or downward departure from the initial calculation of the fee

award based on specific findings. Id. at 1348.

A. Reasonable Hourly Rates for Ragsdale LLC Attorneys

Ms. Brown requests the following rates for her attorney, Mr. Ragsdale: $400

per hour for work performed in 2017; $410 per hour for work performed January –

March 2018; and $420 per hour for work performed after March 31, 2018. Fees

App. Ex. 1 at 3. For co-counsel, Ms. Allison Riley, petitioner requests the

following rates of compensation; $250 per hour for work performed in 2016, $270

for work performed in 2017, and $290 for work performed in 2018. Id. Petitioner

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also requests that a paralegal, Ms. Amy Johnson, be compensated at $135 per hour

for work performed in 2016 and 2017, and at $150 per hour for work performed in

2018. Id. at 4.

Although this is the first time that the undersigned has had the opportunity to

consider the rates for Ragsdale LLC attorneys, other special masters have held that

they are entitled to forum rates. This was first established in Greer v. Sec’y of

Health & Human Servs., in which Special Master Corcoran performed a detailed

analysis concerning the difference between Washington, DC forum rates and the

local rates of Birmingham, AL, where Ragsdale LLC is located. Greer v. Sec’y of

Health & Human Servs., No. 16-1345V, 2018 1125695, at *4-5 (Fed. Cl. Spec.

Mstr. Jan. 17, 2018). Since that time, other special masters have followed Greer

and awarded Ragsdale LLC attorneys forum rates as well. See Coiro-Lorusso v.

Sec’y of Health & Human Servs., No. 04-258V, 2018 WL 2770824 (Fed. Cl. Spec.

Mstr. May 1, 2018). Accordingly, the undersigned finds that petitioner’s counsel is

entitled to forum rates.

The undersigned will, however, make one adjustment to Mr. Ragsdale’s

2018 rate. It appears that Mr. Ragsdale has billed for work performed in 2018 at

two different rates: $410 per hour for work performed prior to April 1, 2018, and

$420 per hour for work performed thereafter. Fees App. at 2. Although he has

submitted an affidavit supporting the requested rates, Mr. Ragsdale has failed to

elucidate why he should be compensated at different rates for work performed

within the same year. Because petitioner has failed to substantiate why an inter-

year increase is appropriate for Mr. Ragsdale, and because he has previously billed

at and been awarded $410 per hour for work performed in 2018, the undersigned

finds that Mr. Ragsdale must be compensated for all work performed in 2018 at

that rate. This is consistent with what Mr. Ragsdale has previously been awarded

for work performed in 2018. See Robinson v. Sec’y of Health & Human Servs.,

No. 15-1352V, slip op. at 2 (Fed. Cl. Spec. Mstr. May 29, 2018); Brown v. Sec’y

of Health & Human Servs., No. 17-0146V, slip op. at 2 (Fed. Cl. Spec. Mstr. Apr.

25, 2018).

The billing record indicates that Mr. Ragsdale billed 1.7 hours at the higher

rate, and also 4.4 travel hours at half of the higher rate. Fees App. at 2.

Accordingly, the undersigned will compensate Mr. Ragsdale at $410 per hour for

the 1.7 hours billed, and at $205 per hour for the 4.4 hours of travel time. This

results in an overall reduction of $39.00.

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The paralegal rates requested have previously been found reasonable and are

in line with forum rates for paralegals in each respective year. Accordingly, no

adjustment to the requested paralegal rates is required.

B. Reasonable Number of Hours for Ragsdale LLC

The second factor in the lodestar formula is a reasonable number of hours.

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).

The Secretary did not directly challenge any of the requested hours as

unreasonable.

In light of the Secretary’s lack of objection, the undersigned has reviewed

the fee application for its reasonableness. See Shea v. Sec’y of Health & Human

Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10,

2015) (“special masters are not obligated to evaluate an attorney’s billing records

on a line-by-line basis in making the reasonableness determination . . . and

certainly need not do so when Respondent has not attempted to highlight any

specific alleged inefficiencies”).

To facilitate the process of evaluating the reasonableness of an attorney's

activities, in November 2004, the Office of Special Masters issued revised

Guidelines for attorneys. The Guidelines state “counsel are advised to maintain

detailed contemporaneous records of time and funds expended under the Program.”

Office of Special Masters, Guidelines for Practice under the National Vaccine

Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated

another way, non-vague) contemporaneous records are the petitioner's

responsibility and allow the Office of Special Masters to determine the

reasonableness of attorneys' fees requests. See Avgoustis v. Shinseki, 639 F.3d

1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit

effective review of the fees is in accord with cases from the Federal Circuit and the

Supreme Court).

Upon review of the submitted billing statement, the undersigned finds the

hours billed (139.3) to be reasonable. Although the petition was filed on February

22, 2017, the billing records indicate that work for this case began on August 8,

2016. It appears that counsel’s work prior to filing the petitioner was well spent, as

petitioner was able to file a substantial amount of medical records shortly after

filing the petition, and the matter quickly progressed to settlement discussions

which were ultimately fruitful for petitioner. Respondent has not identified any

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particular entry as objectionable and the undersigned’s review of the billing record

also did not uncover any objectionable entries.

Accordingly, petitioner is entitled to compensation for attorneys’ fees in the

amount of $28,394.00.

C. Costs Incurred by Ragsdale LLC

The fees application also asks for reimbursement in the amount of $1,490.38

in for costs incurred by Ragsdale LLC. Fees App. at 3. These costs are routine

expenses, such as medical records, mailing costs, and travel expenses to drive to

petitioner for meetings and to execute affidavits. Id. Like attorneys’ fees, a request

for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health &

Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir.

1994).

Upon review, the undersigned finds these requested costs to all be

reasonable. Petitioner has provided adequate documentation for the requested

costs, and respondent has not identified any as unreasonable. According, the full

amount of costs requested shall be awarded, $1,490.38.

D. Conclusion

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

42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $29,884.38 (representing

$28,394.00 in attorneys’ fees and $1,490.38 in costs) as a lump sum in the form of

a check jointly payable to petitioner and her counsel, Mr. Milton Clay Ragsdale,

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

Rules of the Court), the Clerk shall enter judgment in accordance with this

decision.2

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

2

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

by filing a joint notice renouncing their right to seek review.

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