Opinion

Montague v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Oct 24, 2018
Status
Unpublished
On the bench
Nora Beth Dorsey
Cited by
0 cases
Authority
More cited than 5.6%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-0298V

Filed: September 19, 2018

UNPUBLISHED

ROBERT W. MONTAGUE,

Petitioner,

v. Special Processing Unit (SPU);

Attorneys’ Fees and Costs

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.

Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On March 7, 2016, petitioner 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 he suffered injuries, including brachial plexus neuritis,

caused in fact by the tetanus diphtheria (“Td”) vaccine he received on August 21, 2015.

Petition at 1, ¶¶ 2, 6. On November 20, 2017, the undersigned issued a decision

awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 44).

On June 1, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF

No. 49). Petitioner requests attorneys’ fees in the amount of $17,728.20 and attorneys’

costs in the amount of $4,594.07. Id. at 1-2. Former counsel, attorney Jeffrey D.

Boehm, incurred fees and costs in a total amount of $5,470.00. Id. at 2. Additionally, in

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the

undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with

the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of

Electronic Government Services). 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, the undersigned agrees that the identified material fits

within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012).

compliance with General Order #9, petitioner filed a signed statement indicating that

petitioner incurred $406.45 in out-of-pocket expenses. Id. at 2. Thus, the total amount

requested is $28,198.72.

On June 14, 2018, respondent filed a response to petitioner’s motion. (ECF No.

50). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13

contemplates any role for respondent in the resolution of a request by a petitioner for an

award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is

satisfied the statutory requirements for an award of attorneys’ fees and costs are met in

this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special

Master exercise her discretion and determine a reasonable award for attorneys’ fees

and costs.” Id. at 3.

On June 20, 2018, petitioner filed a reply. (ECF No. 51.) Petitioner disputes

respondent’s position that he has no role in resolving attorneys’ fees and costs and

further reiterates his view that his attorneys’ fees and costs in this case are reasonable.

The undersigned has reviewed the billing records submitted with petitioner’s

request and finds it necessary to reduce the following attorney rates and hours billed.

I. Hourly Rates

The undersigned finds it necessary to reduce the hourly rate of Petitioner’s

counsel Ms. Strait. Petitioner’s counsel billed at a rate of $300.00 for 2016, $320.00 for

2017, and $322.00 for 2018. The rate of $300 per hour for work performed in 2016 has

previously been awarded. The undersigned finds the rate of $322.00 for work performed

in 2018 reasonable. However, as is consistent with other cases in this program, Ms.

Strait’s rate is reduced to $307.00 per hour for work performed in 2017. 3 This results in

a reduction of $283.40. 4

II. Administrative Time

Upon review of the billing records submitted, it appears that a number of entries

are for tasks considered clerical or administrative. In the Vaccine Program, secretarial

work “should be considered as normal overhead office costs included within the

attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of

Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.

3The undersigned addressed Ms. Strait’s rate for work performed in 2017 and found $307 was an

appropriate hourly rate. Russell v. Sec’y of Health & Human Servs., No. 16-1091V at 8 (Fed. Cl. Spec.

Mstr. July 17, 2018).

4 This amount consist of $320 - $307 x 21.8 = $283.40.

2

Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the

Vaccine Program.” Mostovoy v. Sec’y of Health & Human Servs., 2016 WL 720969, at

*5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016) (citing Rochester, 18 Cl. Ct. at 387). A total of

1.20 hours 5 was billed by paralegals on tasks considered administrative including,

opening files, organizing documents, and sending correspondence. For these reasons

the attorney’s fees request is reduced in the amount of $174.00. 6

III. Jeffrey D. Boehm

Petitioner’s prior counsel, Jeffrey D. Boehm, billed a total of 3.9 hours on tasks

related to his admission to the Court of Federal Claims and establishing a CM/ECF

electronic account. “[I]t is inappropriate for counsel to bill time for educating themselves

about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health & Human

Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).

“An inexperienced attorney may not ethically bill his client to learn about an area of law

in which he is unfamiliar. 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 & Human Servs.,

No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007).

Examples of these charges include the following:

• December 16, 2015 (0.20 hrs) “Letter to National Vaccine Program

seeking model complaint.”

• February 3, 2016 (0.70 hrs) “Letter to Attorney Bobby Lee Cook & Jerry

Summers re: good character letter to accompany Petition to Board of

Federal Claims; discussion w/Thomas O’Neal re: same”

• March 16, 2016 (1.10 hrs) “Test taken & got good score; I will receive

passwords enabling Me to “open” case file & review documents.”

• March 28, 2016 (0.20 hrs) “Letter to Intake Coordinator, US Court of

Federal Claims.”

(ECF No. 49-3 at 3-5).

Mr. Boehm’s billing entries also reflect an attorney costs charge in the amount of

$25.00 for his letter of to the “Board of Professional Responsibility”. As these entries

and costs are considered non-compensable and billed by attorney Jeffrey D. Boehm,

5Examples of these entries include: April 21, 2016 (0.10 hrs) “Establish new client file, organize and

prepare documents for attorney review and some for filing, update notes.”; January 19, 2017 (0.20 hrs)

“Review USPS tracking re: Mr. Ibach and Dr. Hoffmann’s affidavits. Email attorney re: same.” and

December 29, 2016 (0.10 hrs) “Compile package and mail damages packet, authorization, affidavit and

petition to client.” These entries are merely examples and are not exhaustive.

6 This amount consists of 1.2 hours at $145 per hour.

3

his request for attorney’s fees shall be reduced in the amount of $1,170.00 and request

for costs reduced by $25.00. This results in a total reduction of $1,195.00.

IV. Attorney Costs

Petitioner is requesting attorney costs for expert Dr. Thomas Wright to review

medical records. Dr. Wright’s charges a rate of $600 per hour and required a $2,400

non-refundable “pre-payment.” (ECF No. 54-2 at 2). Therefore the pre-payment of

$2,400 is compensable for 4 hours of Dr. Wright’s expert time. The undersigned finds

the overall costs for Dr. Wright reasonable and awards them in full. 7

A second expert, Dr. D.R. Ayyar, was also utilized in this case. Dr. Ayyar’s

invoice is for a total of $1800. (ECF No. 49-2 at 26). The undersigned finds the overall

costs for Dr. Ayyar reasonable and awards them in full. 8

V. Conclusion

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

§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned

GRANTS IN PART petitioner’s motion for attorneys’ fees and costs.

Accordingly, the undersigned awards the total of $26,546.32 9 as follows:

• A lump sum of $21,864.87, representing reimbursement for

attorneys’ fees and costs, in the form of a check payable jointly to

petitioner and petitioner’s counsel, Danielle Strait; and

• A lump sum of $4,275.00, representing reimbursement for attorneys’

fees and costs, in the form of a check payable jointly to petitioner

and petitioner’s former counsel, Jeffrey D. Boehm; and

• A lump sum of $406.45, representing reimbursement for petitioner’s

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

7 The overall amount is reasonable and the undersigned makes no findings as to hourly rates in regards

to Dr. Thomas Wright.

8 The overall amount is reasonable and the undersigned makes no findings as to hourly rates in regards

to Dr. D.R. Ayyar.

9This 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, § 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 & Human Servs.,

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

4

• Petitioner requests all checks be forwarded to Maglio Christopher &

Toale, PA 1605 Main Street, Suite 710, Sarasota, Florida, 34236.

The clerk of the court shall enter judgment in accordance herewith. 10

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

10Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice

renouncing the right to seek review.

5

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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