Ploughe v. Secretary of Health and Human Services

Opinion

REISSUED FOR PUBLICATION JUN 10 2020 OSM U.S. COURT OF FEDERAL CLAIMS In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 14-626V Filed: April 19, 2018

* * * * * * * * * * * * * * * JESSICA PLOUGHE, Natural Mother * UNPUBLISHED and Guardian of S.P., a Minor, * * Petitioner, * v. * Decision on Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * *

Carol L. Gallagher, Esq., Carol L. Gallagher, Esquire LLC, Linwood, NJ, for Petitioner. Christine M. Becer, Esq., U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth, Special Master:

On July 18, 2014, Jessica Ploughe (“petitioner”) filed a petition on behalf of her minor daughter, S.P., pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleges that S.P. suffers from gastrointestinal problems and papular rash which were caused in fact and/or aggravated as a result of receiving the Diphtheria-Tetanus-acellular Pertussis (“DTaP”), Haemophilus Influenza (“Hib”), inactivated Polio Virus (“IPV”), Hepatitis B (“Hep B”), Measles Mumps-Rubella (“MMR”), Varicella, and Prevnar vaccinations on July 22, 2011. Petition, ECF Nos 1, 41.

A Decision on Interim Attorneys’ Fees and Costs (“Interim Fees Decision”), ECF No. 72, was filed on September 11, 2017, awarding $69,137.34 in attorneys’ fees and $23,521.72 in costs, for a total of $92,659.06. Id. at 5-6. Following several status conferences in which the

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete 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). merits of the case were discussed, petitioner sought alternative counsel but was, so far, unable to secure anyone. On January 30, 2018, petitioner filed a Status Report advising that petitioner’s counsel would be filing a Motion to Withdraw in this matter. ECF No. 79. Petitioner’s counsel also advised that she discussed the merits of this case with petitioner; nevertheless, petitioner wishes to proceed pro se. Id. Petitioner’s counsel was ordered to file a Motion for Attorneys’ Fees and Costs followed by a Motion to Withdraw. See Order, ECF No. 80.

Pursuant to the Court’s Order, petitioner filed a Motion for Fees and Costs on February 15, 2018, requesting $14,082.40 in attorneys’ fees, and $1,030.80 in costs, for a total of $15,113.20. Motion for Fees, ECF No. 83. Respondent opposed the request, arguing that “the proceedings are not especially protracted for petitioner’s counsel because she was awarded interim attorney’s fees on September 11, 2017, less than one year ago.” Resp. at 2, ECF No. 84. Nevertheless, respondent asks that the undersigned exercise her discretion in determining the proper amount to be awarded should she conclude that an award of interim fees is appropriate. Id. Petitioner filed a reply to respondent’s response on March 6, 2018. ECF No. 86.

I. Applicable Legal Standards

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” § 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys’ fees is automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Moreover, special masters have discretion to award interim fees while the litigation is ongoing if “the cost of litigation has imposed an undue hardship” and there is “a good faith basis for the claim.” Shaw v. Sec’y of Health & Humans Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010); see Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). One instance in which interim fees have been awarded is “when petitioner’s counsel withdraws from the case.” Davis v. Sec’y of Health & Human Servs., No. 15-277V, 2016 WL 3999784, at *4 (Fed. Cl. Spec. Mstr. July 5, 2016); see Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 154 (2012).

The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera, 515 F.3d at 1349. Under this approach, [t]he initial estimate of a reasonable attorney’s fee” is calculated 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)). That product is then adjusted upward or downward based on other specific findings. Id.

A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 1348 (quoting Blum, 465 U.S. at 896 n.11). This rate is based on “the forum rate for the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.” Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly rate and forum

2 hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1353 (Fed. Cir. 2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases in which forum rates apply, McCulloch provides the framework for determining the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has issued a fee schedule that updates the McCulloch rates to account for inflation in subsequent years. 3

Once the applicable hourly rate is determined, it is applied to the “number of hours reasonably expended on the litigation.” Avera, 515 F.3d at 1348. The application for fees and costs must “sufficiently detail and explain the time billed so that a special master may determine . . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No. 15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intra office communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016).

Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who perform non-attorney-level work are compensated at a rate comparable to what would be paid for a paralegal or secretary. See O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Hours spent traveling are ordinarily compensated at one-half of the normal hourly attorney rate. See Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). Finally, some tasks are never compensable. For instance, “it 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). And clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Non- compensable clerical and secretarial tasks include making travel arrangements, reviewing and paying invoices, setting up meetings, organizing files, scheduling conference calls, and reviewing files for consistency. J.W., 2017 WL 877278, at *3; Barry v. Sec’y of Health & Human Servs., No. 12-039V, 2016 WL 6835542, at *4 (Fed. Cl. Spec. Mstr. Oct. 25, 2016).

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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen v. Sec’y of Health & Human Servs., 102 3 This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016, http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee- Schedule2015-2016.pdf.

3 Fed. Cl. 719, 728-29 (2011) (affirming special master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Ultimately, special masters have substantial discretion in awarding fees and costs, and may adjust a fee request sua sponte, apart from objections raised by respondent and without providing petitioners with notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. See Broekelschen, 102 Fed. Cl. at 729.

II. Discussion

A. Availability of Interim Fees

As a preliminary matter, respondent states that “[t]he Federal Circuit made clear that interim fee awards should be the rare exception, and not the rule.” Resp. at 1. However, respondent cites a decision of the Court of Federal Claims—a decision that is not binding on Special Masters, see Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998), aff’d, 191 F.3d 1344 (Fed. Cir. 1999)—which states that “Avera . . . suggests that there is not a presumption of entitlement to interim fees.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 300 (2011) (emphasis added).

The court in Avera held that interim fees may be awarded “in appropriate circumstances.” 515 F.3d at 1351. The court then listed some circumstances—cases involving “protracted” proceedings and “costly experts”—in which it would be “particularly appropriate” to award interim fees. Id. at 1352. But “the Federal Circuit in Avera . . . did not enunciate the universe of litigation circumstances which would warrant an award of interim attorney’s fees,” Woods, 105 Fed. Cl. at 154, and “special masters [retain] broad discretion in determining whether to award” them, Al-Uffi ex rel. R.B. v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). The inquiry is simply whether there is “a good faith basis for the claim” and the denial of interim fees would “impose[] an undue hardship” in the circumstances of the case. Shaw, 609 F.3d at 1375. In making this determination, “the special master may consider any of the unique facts of a case.” Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 86, 94 (2016).

In the circumstances of this case, interim fees are warranted. First, petitioner’s counsel is withdrawing from this case, which ordinarily “suffice[s] to constitute the type of ‘circumstances’ to warrant an interim fee award.” Woods, 105 Fed. Cl. at 154; see also, e.g., Rehn, 126 Fed. Cl. at 94 (finding withdrawal of counsel constituted appropriate circumstances for interim fees); Sharp-Rountree v. Sec’y of Health & Human Servs., No. 14-804V, 2015 WL 12600336, at *2 (Fed. Cl. Spec. Mstr. Nov. 3, 2015) (“[W]ithdrawal should be an important, if not deciding, factor in determining the appropriateness of an interim fee award.”); Bear v. Sec’y of Health & Human Servs., No. 11-362V, 2013 WL 691963, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2013) (“[A]fter withdrawing from a case, it may be difficult for former counsel to receive a fees award, and, in such circumstances, special masters have often found it reasonable to make such interim awards.”). Second, the Court ordered petitioner’s counsel to file a Motion for Interim Fees and Costs. See ECF No. 80. Respondent did not object at that time, and it would be a strange about- face for the Court to deny it now. Third, respondent does not dispute that there is “a good faith

4 basis for [petitioner’s] claim.” Shaw, 609 F.3d at 1375; see Sharp-Rountree, 2015 WL 12600336, at *3 (explaining that “petitioners are entitled to a presumption of good faith absent direct evidence of bad faith” and finding a good faith basis when respondent “declined to challenge [it]”). Finally, as the history of this case reveals, it is unlikely that petitioner’s counsel would receive any cooperation from petitioner if she was to wait until this matter concluded. In sum, the circumstances of this case warrant an award of interim fees and costs.

B. Reasonable Rates and Time Expended

Petitioner requests $14,082.40 in fees for her attorney Ms. Gallagher, at a rate of $363.00 per hour for 2017, and $400 per hour for 2018. ECF No. 83-1. The requested hourly rates for 2017, see id. at 3, are consistent with the rates previously found to be reasonable in cases involving petitioner’s counsel. See, e.g., Johnson v. Sec’y of Health & Human Servs., No. 15- 447V, 2017 WL 3811126, at *1 (Fed. Cl. Spec. Mstr. July 31, 2017); Kelly v. Sec’y of Health & Human Servs., No. 15-765V, 2017 WL 2243090, at *1 (Fed. Cl. Spec. Mstr. Apr. 27, 2017). The undersigned also finds the requested hourly rates for 2018, see id. at 5, are reasonable and consistent with the rates established in McCulloch, 2015 WL 5634323 at *17. Moreover, the number of hours expended in this case by petitioner’s counsel appear to be reasonable. Therefore, the undersigned awards the requested attorneys’ fees.

C. Reasonable Costs

Petitioner requests $30.80 in attorneys’ costs to obtain a copy of the transcript for the status conference held on January 1, 2018. See ECF Nos. 78, 83-3. Petitioner also requests $1,000.00 in out-of-pocket expenses for expert fees. ECF No. 83-2. The undersigned finds petitioner’s requested costs to be reasonable.

III. Total Award Summary

Based on the foregoing, the undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs. Accordingly, the undersigned awards $15,113.20, 4 representing $14,082.40 in attorneys’ fees, and $1,030.80 in costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Carol L. Gallagher, Esq. The clerk shall enter judgment accordingly. 5

IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special master

4 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” 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 Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991). 5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.