Miller v. Secretary of Health and Human Services
19-450
| Fed. Cl. | Nov 4, 2021Background
- Petitioner Michelle A. Miller filed a Vaccine Act petition on March 26, 2019, alleging left shoulder impingement syndrome and glenohumeral internal rotation deficit caused by an October 3, 2016 influenza vaccine.
- On January 27, 2021, a decision awarded compensation to Petitioner based on Respondent’s proffer.
- Petitioner moved for attorney’s fees and costs on August 17, 2021, seeking $30,615.05 ($29,925.00 in fees and $690.05 in costs); she reported no out-of-pocket expenses.
- Respondent stated the statutory requirements for fees/costs were met and deferred the amount calculation to the Special Master.
- The Special Master awarded attorney John DeFazio an hourly rate of $300, but reduced 5.5 hours of time for paralegal-level tasks to a paralegal rate of $145/hr, producing a $852.50 reduction.
- All requested costs ($690.05 for medical records, PACER, and filing fee) were awarded; the final lump-sum award was $29,762.55 (payable jointly to Petitioner and counsel).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fees and costs are awardable under the Vaccine Act | Miller asserted statutory entitlement to reasonable attorney’s fees and costs | HHS accepted statutory entitlement and deferred amount determination | Fees and costs awarded under 42 U.S.C. §300aa-15(e) |
| Reasonableness of attorney John DeFazio’s hourly rate | DeFazio sought $300/hr based on experience as attorney and physician | Respondent did not contest the rate | $300/hr for DeFazio was found reasonable and awarded |
| Whether paralegal-level tasks billed at attorney rate must be reduced | Miller billed 5.5 hours for administrative/records tasks at attorney rate | Respondent did not press objections; Special Master evaluated records | Reduced those 5.5 hours to $145/hr (paralegal rate), decreasing fees by $852.50 |
| Whether litigation costs requested are reasonable | Miller requested $690.05 (medical records, PACER, filing fee) | Respondent did not object to the amount | All requested costs awarded in full ($690.05) |
Key Cases Cited
- Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (2008) (requires contemporaneous, specific billing records for fee requests)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (special master may reduce hours that are excessive, redundant, or unnecessary)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (fee applicants must exclude hours that are excessive, redundant, or unnecessary)
- Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201 (2009) (special master may reduce fee requests sua sponte without prior notice)
- Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719 (2011) (no requirement for line-by-line justification when reducing fees)
- Missouri v. Jenkins, 491 U.S. 274 (1989) (attorneys may be compensated for paralegal work but at paralegal rates)
- Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482 (1991) (petitioner bears burden to establish hours, rates, and expenses sought)