Clark v. Secretary of Health and Human Services
Opinion
In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: August 7, 2020
* * * * * * * * * * * * * * KELLY CLARK, * UNPUBLISHED * Petitioner, * No. 18-1381V * Special Master Gowen v. * * Attorneys’ Fees and Costs SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner. Jennifer L. Reynaud, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On March 25, 2020, Kelly Clark (“Petitioner”) filed a motion for attorneys’ fees and costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 41). For the reasons discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of $23,933.09.
I. Procedural History
On September 11, 2018, Petitioner filed a petition in the National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered immune thrombocytopenic purpura (“ITP”) as a result of receiving an influenza vaccination on October 19, 2015. See Petition (ECF No. 1). On March 10, 2020, Petitioner filed a motion for a decision dismissing her petition, and on March 11, 2020, I issued my decision dismissing the petition for insufficient proof. (ECF No. 35).
1 I intend to post this Ruling on the United States Court of Federal Claims' website. This means the Ruling 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. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. On March 25, 2020, Petitioner filed a motion for final attorneys’ fees. Petitioner requests compensation for her attorney, Mr. Andrew Downing, in the total amount of $24,433.09, representing $23,184.00 in attorneys’ fees and $1,249.09 in costs. Fees App. at 1. Pursuant to General Order No. 9, Petitioner warrant she has not personally incurred any costs in pursuit of this claim. Fees App. at 6. Respondent reacted to the fees motion on March 27, 2020, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response at 2. (ECF No. 43). Petitioner did not file a reply thereafter.
The matter is now ripe for adjudication.
II. Analysis
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, I do not doubt that the petition was filed in a good faith belief that petitioner’s vaccination caused her alleged ITP, and I find that there was a reasonable basis to file the petition. Respondent also has not challenged the reasonable basis of the petition. Therefore, an award of reasonable final attorneys’ fees and costs is proper in this case.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
I have reviewed the rates requested by Petitioners for the work of their counsel, Mr. Andrew Downing and Ms. Courtney Van Cott, and I find the rates requested herein to be consistent with what they have previously been awarded for their Vaccine Program work and reasonable in light for the work performed in this case.
Turning next to review of the submitted billing statement, I find that the overall hours spent on this matter appear to be largely reasonable. The entries are reasonable and accurately describe the work being performed and the length of time it took to perform each task. However, a small amount must be reduced for overbilling by firm paralegals. In the instant case, the overbilling incudes time expended on clerical/administrative tasks such as receiving and paying invoices and a general excessive amount of time billed to complete various tasks such as preparing and filing documents and reviewing filings from the Court and Respondent. These issues have all been previously noted concerning the work of Van Cott & Talamante paralegals. See, e.g., Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019).
2 Upon review, an appropriate reduction for these issues is $500.00. Petitioners are therefore awarded final attorneys’ fees of $22,684.00.
b. Attorneys’ Costs
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). Petitioner requests total attorneys’ costs in the amount of $1,249.09. Fees App. at 23-24. Petitioner has provided adequate documentation supporting all of the requested costs, and all appear reasonable in my experience. Petitioner is therefore entitled to the full amount of costs sought.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as follows:
Attorneys’ Fees Requested $23,184.00 (Reduction of Fees) - ($500.00) Total Attorneys’ Fees Awarded $22,684.00
Attorneys’ Costs Requested $1,249.09 (Reduction of Costs) - Total Attorneys’ Costs Awarded $1,249.09
Total Attorneys’ Fees and Costs $23,933.09
Accordingly, I award a lump sum in the amount of $23,933.09, representing reimbursement for Petitioner’s attorneys’ fees, in the form of a check payable to Petitioner and her attorney, Mr. Andrew Downing.3
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.4
IT IS SO ORDERED.
3 This 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,” and fees for legal services rendered.
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