# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15–0007V Filed: August 4, 2017 Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * * DEBORAH VALLES, *

* Petitioner, *

* v. * Attorneys’ Fees and Costs; * Special Processing Unit (“SPU”)

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * * Mark T. Sadaka, Attorney at Law , Englewood, NJ, for petitioner. Christine M. Becer, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNE YS’ FEES AND COSTS 1

Dorsey , Chief Special Master:

On January 5, 2015, Deborah Valles (“petit ioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. , (the “Vaccine Act”). 2 The petition alleged that as a re sult of a Measles, Mumps, Rubella (MMR) vaccination administered on August 8, 2012, petitioner suffered “arthralgia, myalgia, myositis, muscle weakness, bila teral bursitis in both knees, numbness and tingling, and pain.” Pet. at 1. The case wa s assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.

On February 2, 2017, the undersigned issued a decision based on the parties’ stipulation, awarding petitioner $20,000.00. Decision, filed Feb. 2, 2017 (ECF No. 48). On March 28, 2017, petitioner filed an application for attor neys’ fees and costs, along

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 with two exhibits in support thereof. Pe t’r’s Appl. for Att’ys’ Fees and Costs (“Application”), filed Mar. 28, 2017 (ECF No. 51).

Petitioner requests $23,096.09 in attorne ys’ fees and $3,183.61 in costs, for a total award of $26,279.70. 3 Id. at 1, 15-16; Ex. A (ECF No. 51- 1); Ex. B (ECF No. 51-2).

For the reasons stated below, the undersi gned finds certain reductions are necessary, and awards petitioner a total of $23,970.09 in attorneys’ fees and costs.

I. Relevant Procedural History

Petitioner requests $23,096.09 in attorneys’ fees (including fees for two associate attorneys and five paralegals) and $3,183.61 in costs. The Applicat ion provides time and expense sheets, in addition to a suppor ting statement (“Certification”) from petitioner’s counsel provid ing background information on himself and some members of

his staff who worked on the case. A pplication at 3-7; Exs. A and B.

Respondent filed a response to petitioner ’s application on April 14, 2017. Respondent’s Response (“Resp’t’s Resp. ”), filed Apr. 14, 2017 (ECF No. 52). Respondent did not object to the overall amount sought, but noted that his lack of objection “should not be construed as admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs.” Id. at

1.

Petitioner filed a reply on April 14, 2017, requesting this Court “grant her motion

for the aforementioned fees and costs.” Petitioner’s Reply (“P et’r’s Reply”), filed Apr. 14, 2017 (ECF No. 53) at 1.

II. Discussion

Pursuant to the Vaccine Act, the spec ial master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). Petitioner in this case was awarded compensation, and she is entitled to reasonable attorneys’ fees and costs. 4

a. Reasonable Attorneys’ Fees

The Federal Circuit endorses the lodes tar approach to determine reasonable attorneys’ fees and costs. Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under the lodestar approach, a court makes “an initial estimate

3 Petitioner requested $26,279.69 in fees and costs. A pplication at 1; Ex. A at 16. However, $23,096.09 (requested total fees) + $3,183.61 (requested total costs) = $26,279.70.

4 Additionally, § 300aa-15(e)(3) states that “[n]o attorn ey may charge any fee for services in connection with a petition filed under section 300aa-11 of this title which is in addition to any amount awarded as compensation by the special master or court under paragraph (1).” This would include any amounts requested by counsel that the undersigned finds non-compensable.3 of a reasonable attorneys’ fee by ‘multipl ying the number of hour s reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum v.

Stenson , 465 U.S. 886, 888 (1984)). After this in itial calculation, the court “may then make an upward or downward departure to the fee award based on other specific findings.” Id. at 1348.

The reasonableness standard applies both to attorneys’ fees and costs. Savin v. Sec’y of Health & Human Servs. , 85 Fed. Cl. 313, 315 (2008). The application must provide sufficient detail and explanation of the time billed so that a special master may adjudge the reasonableness of the amount requested. Bell v. Sec’y of Health & Human

Servs. , 18 Cl. Ct. 751, 760 (1989); Rodriguez v. Sec’y of Health & Human Servs. , No. 06-559V, 2009 WL 2568468 at *8 (Fed. Cl. Spec. Mstr. July 27, 2009). It is the petitioner who bears the bur den of adequately documenting the fees and costs. Rodriguez , 2009 WL 2568468 at *8.

Special masters need not conduct a line-by-l ine evaluation of a petitioner’s fee application to determine a reas onable number of hours expended. Wasson v. Sec’y of

Health & Human Sevs. , 24 Cl.Ct. 482, 484, aff’d in relevant part , 988 F.2d 131 (Fed. Cir. 1993); Nelson v. Sec’y of Health & Human Servs. , No. 14-70V, 2015 WL 9302973 at *2 (Fed. Cl. Spec. Mstr. Nov. 30, 2015) (“It is within the special master’s discretion to reduce the number of hours by a percentage of t he amount charged, rather than making a line-by-line determination regarding the r easonableness of the c harges”). Special

masters have discretion to discern whether any of the requested hours are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of H ealth & Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993) (i nternal quotations and ci tations omitted). In contemplating reductions, special masters ha ve the latitude to “consider their prior experience in reviewing fee applications and even dealings with the specific attorney

involved.” Savin , 85 Fed. Cl. at 315. It is further within the purview of special masters to reduce a fee request sua sponte , apart from or in t he absence of respondent’s objections, and without providi ng petitioner notice or oppo rtunity to respond. Sabella v. Sec’y of Health & Human Servs. , 86 Fed. Cl. 201, 209 (2009); Estate of Bondi by Shoemaker v. Sec’y of Health & Human Servs. , No. 12-476V, 2017 WL 1046526 at *2 (Fed. Cl. Spec. Mstr. Feb. 23, 2017).

i. Reasonable Hourly Rates

Petitioner requests the following hourly rates:

2012 2013 2014 2015 2016 2017 Attorneys

Mark Sadaka 337.05 337.05 350 350 362.95 376.38 Anna Sweeney 192.60 200 200 207.40 215.07 223.03

Andrew Pinon 200 207.40 215.07 223.03

Paralegals

Ailona Parker 130.01 135 135 140 145.17

Bria Wilson 130.01 135 135 140 145.17 Keri Congiusti 130.01 130.01 135 135 140 145.17

Latashia Vauss 130.01 135 135 140 145.17

Melina Fotiou 130.01 135 135 140 145.174 Petitioner’s application includes requested ra tes for years in which certain staff

members did not bill time in this case. 5 Application at 1-2. The undersigned will only address requested rates for staff members in the years in which they billed time.

The rates requested for Mr. Sadaka and Mr. Pinon have been evaluated and

awarded to them in other Vaccine Act cases. See, e.g.

, Siciliano v. Sec’y of Health &

Human Servs. , No. 15–253V, 2017 WL 1174449 at *2 (Fed. Cl. Spec. Mstr. Feb. 21, 2017); Jones v. Sec’y of Health & Human Servs. , No. 12–875V, 2017 WL 2061471 at *3 (Fed. Cl. Spec. Mstr. Apr. 18, 2017). T he undersigned finds these rates reasonable and

awards them herein.

After consideration, the undersigned finds it necessary to adjust the rate requested for Ms. Sweeney in 2012. The 2012 rate for Ms. Sweeney is reduced from $192.60 to $185.47. Ms. Sweeney was admitted to practice in New Jersey in 2012. Application at 6. The undersigned finds this reduced rate appropriate based on Ms. Sweeney’s experience in 2012, and this rate is consistent wit h that awarded to her in

Jones for 2012. See Jones , 2017 WL 2061471 at *3.

Petitioner requests reimbursement fo r time billed by five paralegals. 6 Petitioner’s requested rates for three of the pa ralegals have previously been awarded. 7 The undersigned finds these rates reasonable, and aw ards them herein. However, the rate requested for Ms. Congiusti in 2012 is too high, and is adjusted to align with the rate

awarded to her in Jones

. 8 Additionally, the rate reques ted for Ms. Parker and in 2016 and 2017 is too high based on her experience, and the undersigned adjusts it to align

with the rate awarded to her in Jones

, Siciliano

, and Willett

. 9

5 For example, petitioner requests hourly rates for Ailona Parker from 2013-2017. Application at 1. However, Ms. Parker only billed time in 2016 and 2017. Ex. A at 1-15.

6 Petitioner requests reimbursement for time billed by Ailona Parker, Bria Wilson, Keri Congiusti, Latashia Vauss, and Melina Fotiou.

7 These paralegals are Bria Wilson, Latashia Vauss, and Melina Fotiou. Siciliano , 2017 WL 1174449 at *2; see Willett v. Sec’y of Health & Human Servs. , No 15–252V, 2017 WL 3298983 at *3 (Fed. Cl. Spec. Mstr. June 2, 2017).

8 The rate for Keri Congiusti is reduced from $130.01 to $125.19 for 2012. See Jones , 2017 WL 2061471

at *3.

9 The rate requested for Ailona Parker is reduced from $140 to $135 for 2016. See Jones , 2017 WL 2061471 at *3 (Special Master Roth awarded $134.81, but the undersigned rounds to the nearest dollar);

Siciliano , 2017 WL 1174449 at *2-3 (Special Master Gowen awarded $134.81, but the undersigned rounds to the nearest dollar); Willett , 2017 WL 3298983 at *3 n. 6 (awarding Ms. Parker $135 per hour for time billed in 2016). The undersigned finds a rate of $140 per hour for 2017 to be reasonable based on these adjusted rates and Ms. Parker’s experience.5 Accordingly, the undersigned awards the following hourly rates:

ii. Reduction of Billable Hours

1. Excessive and Duplicative Billing

The undersigned has previously found it app ropriate to reduce fees that are excessive or duplicative. J.W. v. Sec’y of Health & Human Servs. , No. 15-551V, 2017 WL 877278 at *6 (Fed. Cl. Spec. Mstr. F eb. 10, 2017) (reducing attorneys’ and law students’ overall fees by 20 percent due to excessive and duplicative billing); Davis v. Sec’y of Health & Human Servs. , No. 15-159V, 2017 WL 877277 at *7 (Fed. Cl. Spec. Mstr. Feb. 7, 2017) (reducing attorneys’ f ees and law students’ fees by 20 percent due to excessive and duplicative billing). As many of petitioner’s billing entries are excessive and one is duplicative, the under signed finds cause to reduce the fee
request.

Most significantly, petitioner’s billing re cords contain over 80 entries amounting to nearly 38 hours and approximat ely $5,470.53 in requested fees for time spent requesting, receiving, and reviewing medi cal records, and communicating with and researching medical providers. 10 The undersigned finds this to be a strikingly excessive amount of time spent managing the approximatel y 160 pages of medical records filed in this case. The undersigned finds cause to reduce petitioner’s fee award for these

entries.

Petitioner’s billing records also contai n a duplicative entry. On September 27, 2016, Mr. Sadaka billed 0.7 hours for, inter alia , “plan and prepare for status

10 Based on the undersigned’s review and calculations , Keri Congiusti billed approximately 28.8 hours related to medical records ( e.g. , “Communicate with medical provider re: record request; draft notes to file”; “Receipt/review of medical record; update f ile”; “Review/analyze medical records”); Anna Sweeney billed approximately 4.7 hours ( e.g. , “Review/analyze client provided medical records; update SOL memo and chronology”; “Review/analyze medical records”; “Communicate with client re medical records; draft notes to file. Review/analyze client provided medical records”); Bria Wilson billed approximately 3.9 hours ( e.g. , “Communicate with medical provider re: record request; draft notes to f ile”; “Draft/revise medical record request; prepare authorization”; “Research m edical provider”); Ailona Parker billed approximately 0.2 hours ( e.g. , “Draft/revise correspondence to medical provider re: medical record payment); and Latashia Vauss billed ap proximately 0.1 hours ( e.g. , “Receipt/review correspondence from medical provider re: invoice; update file”). This totals approximately $5,470.53. 2012 2013 2014 2015 2016 2017 Attorneys

Mark Sadaka 337.05 337.05 350 350 362.95 376.38 Anna Sweeney 185.47 200 207.40

Andrew Pinon 215.07

Paralegals

Ailona Parker 135 140

Bria Wilson 135 140 Keri Congiusti 125.19 130.01 135 135 140

Latashia Vauss 140

Melina Fotiou 140 145.176 conference; appear for/attend status conferenc e.” Ex. A at 13. Mr. Sadaka billed an additional 0.9 hours on September 27, 2016 for “[p]lan/prepare for status conference. Appear for/attend status conferenc e; draft/revise notes to file.” Ex. A at 14. Because petitioner may not submit duplicative c harges, the undersigned finds cause to reduce petitioner’s 0.7 hour entry for $254.07.

2. Administrative Time

The Vaccine Program does not permit billin g for clerical, administrative, or

secretarial work. Rochester v. United States , 18 Cl. Ct. 379, 387 (1989) (finding that

services of a secretarial or clerical nature “should be considered as normal overhead office costs included within the attorneys’ fee rates”); J.W. , 2017 WL 877278 at *3 (“It is well established that billing for clerical and ot her secretarial work is not permitted in the Vaccine Program”).

Petitioner’s counsel billed approximat ely 1.3 paralegal h ours for mailing. 11 These entries, which the undersigned characterizes as administrative work, do not constitute

billable time. Guerrero v. Sec’y of Health & Human Servs. , 124 Fed. Cl. 153, 156 (2015) (noting that “purely cler ical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them”) (internal quotations and citations omitted). The undersigned therefore r educes the fee request.

3. Vague Entries

As noted above, a petitioner’s application for fees and costs must sufficiently

detail the time billed so as to enable the special master to determine the

reasonableness of the amount requested. Bell , 18 Cl. Ct. at 760; Rodriguez , 2009 WL 2568468 at *8. The undersigned has prev iously found it reasonable to reduce attorneys’ fees for vagueness, and finds it necessary to do so herein. Estate of Bondi

, 2017 WL 1046526 at *3 (reducing a fee award for vagueness when petitioner’s billing

entries “did not include sufficient deta il about what tasks were being performed and why”); Davis , 2017 WL 877277 at *4 (reducing petiti oner’s fee award for vagueness).

The undersigned finds numerous vague billing entries made in this case. Petitioner billed approximatel y 6.4 hours of attorney and paralegal time over 20 separate entries to perform case review (o ccasionally referred to as “Review/analyze case file”) and draft/revise directives. These ac tivities alone result in over $2,100.00 in

fees. Ex. A at 1-15. Counsel’s vague descriptions do not provide the undersigned sufficient means to effectively evaluate t he reasonableness of the time spent and work performed, and the undersigned thus finds caus e to reduce petitioner’s fee award.

For all the reasons stated above, the undersigned reduces petitioner’s entire fee award by 10 percent. See Estate of Bondi , 2017 WL 1046526 at *4 (reducing petitioner’s fee awar d by 10 percent); Raymo v. Sec’y of Health & Human Servs. , No.

11 Keri Congiusti billed 0.3 hours for “Plan/prepare mailing to client re: petition” and 0.2 hours for “Plan/prepare mailing to client re: filed affidavit.” Bria Wilson billed 0.7 hours for, inter alia , “Plan/prepare mailing of damages form to client.” Melina Fotiou billed 0.1 hours for “plan/prepare mailing of stipulation.”7 11–654V, 2016 WL 7212323 at *18 (F ed. Cl. Spec. Mstr. Nov. 2, 2016) (reducing petitioner’s fee awar d by 20 percent); Nelson , 2015 WL 9302973 at *2 (“It is within the special master’s discretion to reduce t he number of hours by a percentage of the amount charged, rather than making a lin e-by-line determination regarding the reasonableness of the charges”). This adjustment reduces pe titioner’s fee award by $2,309.61.

b. Costs

Petitioner requests reimbursement for atto rney costs in the amount of $3,183.61. After reviewing petitioner’s invoices, the undersigned finds no cause to reduce petitioner’s request and awar ds the full amount sought.

III. Conclusion

The undersigned awards petiti oner the following for atto rneys’ fees and costs:

Requested attorneys’ fees: $23,096.09

Reductions - 2,309.61 Adjusted Fees Total: $20,786.48

Requested attorneys’ costs: $3,183.61

Reductions - 0.00 Adjusted Costs Total: + $3,183.61

Total Attorneys’ Fees and Costs Awarded: $23,970.09

Accordingly, the undersigned awards a total of $23,970.09, 12 representing reimbursement for all attorneys’ fees and costs, in the form of a check jointly payable to petitioner and petitioner’s counsel, Mark T. Sadaka.

The clerk of the court is directed to enter judgment in accordance with this

decision. 13

IT IS SO ORDERED.

s/Nora Beth Dorsey

12 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 co sts” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from char ging or collecting fees (including costs) that would

be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991).

13 Pursuant to Vaccine Rule 11(a), entry of judgment c an be expedited by the parties’ joint filing of notice renouncing the right to seek review.8 Nora Beth Dorsey Chief Special Master