In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
FERMIN PADILLA, *
* No. 15-642V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: March 30, 2017
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs.
*
Respondent. *
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Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner;
Glenn A. MacLeod, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On February 16, 2017, petitioner Fermin Padilla moved for final attorneys’
fees and costs. He is awarded $7,535.82.
On June 22, 2015, Mr. Padilla filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. §300a-10 et. seq., alleging the influenza (“flu”)
vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.
§100.3(a), and which he received on or about September 8, 2012, caused him to
suffer a “rash on [the left] arm and abdomen and shoulder after injection; pain in
and around the injection area [and] numbness in the wrist and arm.” The
undersigned issued a decision awarding compensation to Mr. Padilla based on the
parties’ stipulation. Decision, 2016 WL 4978437 (Aug. 25, 2016).
1
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.
Because Mr. Padilla received compensation, he is entitled to an award of
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). 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, the 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.
* * *
Mr. Padilla seeks a total of $12,013.89 ($11,190.05 in attorneys’ fees and
$823.84 in costs).
For attorneys’ fees, Mr. Padilla seeks reimbursement for work by attorneys,
Richard Gage and Daniel Gerstein, as well as paralegals. For work in this case,
Mr. Gage has charged $373.75 per hour for 2014, $387.50 per hour for 2015, and
$401.75 per hour for 2016-17, claiming that he is entitled to be compensated at
rates prevailing in Washington, D.C. even though he works in Cheyenne, WY. In
support of these rates, Mr. Gage presented similar evidence as in recently decided
cases. See Anthony v. Sec’y of Health & Human Servs., No. 14-680V, 2016 WL
7733084 (Fed. Cl. Spec. Mstr. Dec. 15, 2016), mot. for rev. filed (Jan. 17, 2017).
In Anthony, the undersigned considered multiple sources about rates of
attorneys in Cheyenne, WY including cases in which jurists across Wyoming
discussed reasonable hourly rates. 2016 WL 7733084, at *7, 12. After weighing
these various sources, the undersigned exercised discretion in finding reasonable
hourly rates. The undersigned determined the rates for Mr. Gage as $263.38 per
hour for 2014, $268.12 per hour for 2015, and $275.09 per hour for 2016. 2016
WL 7733084, at *8.2 The rates from Anthony remain reasonable.
A small difference in this case compared to Anthony is that in the present
fee application, Mr. Gage and his staff included entries for 2017. Mr. Gage billed
the small amount of work that took place in 2017 at 2016 rates. This substitution is
reasonable and, following Mr. Gage’s lead, the undersigned uses the 2016 hourly
2
As Mr. Anthony’s counsel, Mr. Gage filed a motion for review. The motion remains
pending.
2
rate for entries in 2017. Mr. Gage may present information, evidence, and
argument regarding reasonable hourly rates in a future fee application regarding his
2017 hourly rate. Adjusting the requested rates to the rates set in Anthony, results
in a deduction of $1,595.06.
During the early stage of the case, Mr. Gage received assistance from
another attorney, Daniel Gerstein. Mr. Gerstein charged $350 per hour in 2015.
Mr. Gerstein’s hourly rate has previously been found to be $242 per hour for 2015.
McErlean v. Sec’y of Health & Human Servs., No. 13-543V, 2016 WL 4575583,
at *5 (Fed. Cl. Spec. Mstr. July 28, 2016). Adjusting the requested rate to the rate
set in McErlean results in a deduction of $734.40.
Lastly, Mr. Padilla seeks reimbursement for paralegals in the amount of
$6,401.60. The undersigned determined reasonable rates for these paralegals in
Anthony. 2016 WL 7733084, at *8 n. 23. Adjusting the requested paralegal rates
to the rates set in Anthony results in a deduction of $1,486.10.
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 also 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. Secʼy 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”). In Anthony, the undersigned reduced Mr. Gage’s
fee request by ten percent due to vague time entries. Anthony, 2016 WL 7733084,
at *15 (citing Fox v. Vice, 563 U.S. 826, 838 (2011)); see also Stone v. Secʼy of
Health & Human Servs., No. 04-104V, 2010 WL 3790297, at *5 (Fed. Cl. Spec.
Mstr. Sep. 9, 2010) (deducting ten percent from Mr. Gage’s invoice for an
“excessive and vague bill”). The same “rough justice” is applicable here as Mr.
Gage’s billing entries do not provide enough detail so that the reasonableness of
the activity can be assessed.
Consequently, this results in a ten percent reduction is $662.51.
3
In addition to seeking attorneys’ fees, Mr. Padilla seeks an award of costs for
his counsel. Most of the costs are relatively routine, such as costs for medical
records retrieval, mailings, and photocopies. All these costs are reasonable,
documented, and awarded in full.
* * *
The undersigned finds an award of attorneys’ fees and costs appropriate. In
compliance with General Order No. 9, petitioner states that he advanced no monies
for reimbursable costs in pursuit of his claim. The undersigned awards Mr. Padilla
the following amount for attorneys’ fees and costs:
Summary
Requested Attorneys’ Fees $11,190.05
Mr. Gage Rate Adjustment -$1,595.06
Mr. Gerstein Rate Adjustment -$734.40
Paralegal Rate Adjustment -$1,486.10
10% Deduction for Vagueness -$343.50
Attorneys’ Fees Awarded $7,030.99
Requested Attorneys’ Costs $823.84
Deductions $0.00
Attorneys’ Costs $823.84
Petitioner’s Costs Incurred $0.00
Deductions $0.00
Petitioner's Costs Awarded $0.00
Attorneys’ Fees, Paralegal Fees, & Costs $7,535.82
Petitioner’s Costs $0.00
Total Award Amount $7,535.82
Accordingly, the court awards:
a. A lump sum of $7,535.82 in the form of a check made payable
to petitioner and petitioner’s attorney, Richard Gage, of
Richard Gage, P.C., for attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e).
4
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court shall enter judgment in accordance herewith.3
IT IS SO ORDERED.
S/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant 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