In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
********************** DAVID BORDEN as personal * representative of ESTATE OF * MONA BORDEN, * * No. 19-1526V Petitioner, * Special Master Christian J. Moran * v. * Filed: October 2, 2023 * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * ** *
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for Petitioner; Julia M. Collison, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner David Borden’s motion for final attorneys’ fees and costs. He is awarded $37,711.33.
1 Because this published decision contains a reasoned explanation for the action in this case, the undersigned is 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 posting means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 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. * * *
On October 2, 2019, Mona Borden filed for compensation under the Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34. On October 4, 2022, David Bordon was substituted as petitioner in this case following Mrs. Bordon’s death. The petition alleged that the influenza vaccine Mrs. Borden received on October 3, 2016, caused her to suffer from thrombocytopenic purpura. Following briefing on the issue of severity, a fact hearing was held on August 3, 2021. Due to other cases potentially having an impact on the instant case, the undersigned temporarily stayed this case on September 10, 2021. On October 6, 2022, the undersigned issued his decision dismissing the petition because petitioner had failed to meet the severity requirement. 2022 WL 16942127.
On November 15, 2022, petitioner filed a motion for final attorneys’ fees and costs (“Fees App.”). Petitioner’s motion requests attorneys’ fees of $34,208.51 and attorneys’ costs of $4,302.82 for a total request of $38,511.33. Pursuant to General Order No. 9, petitioner has indicated that \he has not personally incurred any fees or costs related to the prosecution of his petition. On November 16, 2022, respondent filed a response to petitioner’s motion. 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.” Response at 1. Respondent further recommends “that the Court exercise its discretion” when determining a reasonable award for attorneys’ fees and costs. Id. at 3. Petitioner filed a reply on November 16, 2022, reiterating his belief that the requested fees and costs are reasonable.
* * * Although compensation was denied, petitioners who bring their petitions in good faith and who have a reasonable basis for their petitions may be awarded attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although petitioner’s claim was ultimately unsuccessful the undersigned finds that good faith and reasonable basis existed throughout the matter. Respondent also has not advanced any argument that would indicate he believes the case lacked good faith or reasonable basis. Respondent’s position greatly contributes to the finding of reasonable basis. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”) A final award of reasonable attorneys’ fees and costs is therefore proper in this case and the remaining question is whether the requested fees and costs are reasonable.
2 The Vaccine Act permits an award of reasonable attorney’s fees and costs. §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, 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. Here, because the lodestar process yields a reasonable result, no additional adjustments are required. Instead, the analysis focuses on the elements of the lodestar formula, a reasonable hourly rate and a reasonable number of hours. In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See McIntosh v. Secʼy of Health & Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. There is, however, an exception (the so-called Davis County exception) to this general rule when the bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work was done outside of the District of Columbia. Petitioner requests the following rates of compensation for the work of his counsel, Mr. Mark Sadaka: $396.00 per hour for work performed in 2018, $405.00 per hour for work performed in 2019, $422.00 per hour for work performed in 2020, $444.00 per hour for work performed in 2021, and $458.00 per hour for work performed in 2022. The undersigned has reviewed the requested rates and finds them to be reasonable and consistent with what special masters have previously awarded to petitioner’s counsel for his Vaccine Program work. See, e.g. Rose v. Sec’y of Health & Human Servs., No. 17-1770V, 2021 WL 3053035 (Fed. Cl. Spec. Mstr. Jun. 28, 2021). Accordingly, the requested hourly rates are reasonable.
3 B. Reasonable Number of Hours
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.
The undersigned has reviewed the submitted billing entries and finds the request to be reasonable.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS
********************** DAVID BORDEN as personal * representative of ESTATE OF * MONA BORDEN, * * No. 19-1526V Petitioner, * Special Master Christian J. Moran * v. * Filed: October 2, 2023 * SECRETARY OF HEALTH * Attorneys’ Fees and Costs AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * * * * * * ** *
Mark T. Sadaka, Law Offices of Sadaka Associates, LLC, Englewood, NJ, for Petitioner; Julia M. Collison, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner David Borden’s motion for final attorneys’ fees and costs. He is awarded $37,711.33.
1 Because this published decision contains a reasoned explanation for the action in this case, the undersigned is 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 posting means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 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. * * *
On October 2, 2019, Mona Borden filed for compensation under the Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34. On October 4, 2022, David Bordon was substituted as petitioner in this case following Mrs. Bordon’s death. The petition alleged that the influenza vaccine Mrs. Borden received on October 3, 2016, caused her to suffer from thrombocytopenic purpura. Following briefing on the issue of severity, a fact hearing was held on August 3, 2021. Due to other cases potentially having an impact on the instant case, the undersigned temporarily stayed this case on September 10, 2021. On October 6, 2022, the undersigned issued his decision dismissing the petition because petitioner had failed to meet the severity requirement. 2022 WL 16942127.
On November 15, 2022, petitioner filed a motion for final attorneys’ fees and costs (“Fees App.”). Petitioner’s motion requests attorneys’ fees of $34,208.51 and attorneys’ costs of $4,302.82 for a total request of $38,511.33. Pursuant to General Order No. 9, petitioner has indicated that \he has not personally incurred any fees or costs related to the prosecution of his petition. On November 16, 2022, respondent filed a response to petitioner’s motion. 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.” Response at 1. Respondent further recommends “that the Court exercise its discretion” when determining a reasonable award for attorneys’ fees and costs. Id. at 3. Petitioner filed a reply on November 16, 2022, reiterating his belief that the requested fees and costs are reasonable.
* * * Although compensation was denied, petitioners who bring their petitions in good faith and who have a reasonable basis for their petitions may be awarded attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although petitioner’s claim was ultimately unsuccessful the undersigned finds that good faith and reasonable basis existed throughout the matter. Respondent also has not advanced any argument that would indicate he believes the case lacked good faith or reasonable basis. Respondent’s position greatly contributes to the finding of reasonable basis. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”) A final award of reasonable attorneys’ fees and costs is therefore proper in this case and the remaining question is whether the requested fees and costs are reasonable.
2 The Vaccine Act permits an award of reasonable attorney’s fees and costs. §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, 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. Here, because the lodestar process yields a reasonable result, no additional adjustments are required. Instead, the analysis focuses on the elements of the lodestar formula, a reasonable hourly rate and a reasonable number of hours. In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See McIntosh v. Secʼy of Health & Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. There is, however, an exception (the so-called Davis County exception) to this general rule when the bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work was done outside of the District of Columbia. Petitioner requests the following rates of compensation for the work of his counsel, Mr. Mark Sadaka: $396.00 per hour for work performed in 2018, $405.00 per hour for work performed in 2019, $422.00 per hour for work performed in 2020, $444.00 per hour for work performed in 2021, and $458.00 per hour for work performed in 2022. The undersigned has reviewed the requested rates and finds them to be reasonable and consistent with what special masters have previously awarded to petitioner’s counsel for his Vaccine Program work. See, e.g. Rose v. Sec’y of Health & Human Servs., No. 17-1770V, 2021 WL 3053035 (Fed. Cl. Spec. Mstr. Jun. 28, 2021). Accordingly, the requested hourly rates are reasonable.
3 B. Reasonable Number of Hours
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.
The undersigned has reviewed the submitted billing entries and finds the request to be reasonable. The billing entries contain sufficient detail to permit the undersigned to assess their reasonableness, and upon review none appear to be objectionable. Respondent also has not indicated that he finds any of the billing entries to be objectionable. Therefore, petitioner is awarded final attorneys’ fees in the amount of $34,208.51. C. Costs Incurred
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). Petitioner requests a total of $4,302.82 in attorneys’ costs. This amount is comprised of acquiring medical records, the Court’s filing fee, postage, and work performed by a local estate attorney in setting up petitioner as the administrator of Ms. Borden’s estate.
The total cost of all estate work was $3,625.00 and billed at flat rates for several different tasks. See Fee App’n at pdf 43-45. Petitioner has not demonstrated that some work, such as creating a will, was due to the alleged vaccine-induced injury. Accordingly, $800 is removed. The remaining activities, although inadequately documented, are accepted, especially because the Secretary did not interpose any objection. See, e.g., Littrell v. Sec’y of Health & Human Servs., No. 17-796V, 2019 WL 2281746, at *4 (Fed. Cl. Spec. Mstr. Apr. 25, 2019) (awarding petitioner $2,868.10 for estate work); Cage v. Sec’y of Health & Human Servs., No. 16-38V, 2018 WL 7051382, at *3 (Fed. Cl. Spec. Mstr. Dec. 13, 2018) (awarding petitioner $6,676.35). Accordingly, a reasonable amount for Mr. Schilken’s services is $2,825. 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 $37,711.33 (representing $34,208.51 in attorneys’ fees and $3,502.82 in attorneys’ costs) as a lump sum in
4 the form of a check jointly payable to petitioner and petitioner’s counsel, Mr. Mark Sadaka. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.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.