Kline v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-0237V (not to be published) ARI KLINE, Chief Special Master Corcoran Petitioner, v. Filed: December 16, 2020 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Leigh Rosser, Muller Brazil, LLP, Dresher, PA, for Petitioner. James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On March 3, 2020, Ari Kline 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 a left shoulder injury after receiving an influenza vaccine on October 10, 2018. (Petition at 1). On September 24, 2020, a decision was issued dismissing the petition for insufficient proof. (ECF No. 19). 1 Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Petitioner has now filed a motion for attorney’s fees and costs, dated November 6, 2020 (ECF No. 24), requesting a total award of $9,072.44 (representing $8,467.40 in fees and $605.04 in costs). In accordance with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no out-of-pocket expenses. (Id. at 2). Respondent reacted to the motion on November 17, 2020, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring determination of the amount to be awarded to my discretion. Petitioner did not file a reply thereafter. I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reason listed 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 & Human 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 & Human 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 & Human 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 & Human 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 & Human Servs., 24 Cl. Ct. at 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. 2 Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs for a petition that does not result in an award of compensation but was filed in good faith and supported by a reasonable basis. § 300aa–15(e)(1). Here, although the petition was eventually dismissed, I do not doubt that the claim was brought in a good faith belief that the vaccination caused Petitioner’s injury, and I find that the claim had a reasonable basis to proceed for as long as it did. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs. ATTORNEY FEES Petitioner requests the rate of $225 per hour for attorney Leigh Rosser. (ECF No. 24 at 1). This includes time billed in both 2019 and 2020. Ms. Rosser has been a licensed attorney since 2019, placing her in the range of attorneys with less than four years’ experience. Although the requested rate is within the appropriate experience range, it is on the highest end of the experience range. Due to Ms. Rosser’s overall limited experience as a licensed attorney, I find a slight reduction to her hourly rate to be appropriate. But I will otherwise award all time billed to the matter. Therefore, I award the rate of $185 per hour for 2019 and the rate of $200 per hour for Ms. Rosser in 2020. This reduces the requested attorney’s fees in the amount of $502.50. 3 ATTORNEY COSTS Petitioner requests $605.04 in overall costs. (ECF No. 24 at 2). This amount is comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have reviewed all of the requested costs and find them to be reasonable and shall award it in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $8,569.94 (representing $7,964.90 in fees and $605.04 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In 3 This amount is calculated as follows ($224 - $185 = $40 x .10 hrs = $4.00) + ($225 - $200 = $25). 3 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. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 4