               In the United States Court of Federal Claims
                                                 No. 17-187V
                                           (Filed: January 9, 2020)
                                         (Refiled: January 27, 2020) 1

                            )
DENNIS PICKENS,             )
                            )
          Petitioner,       )
                            )
     v.                     )
                            )
SECRETARY OF THE DEPARTMENT )
OF HEALTH AND HUMAN         )
SERVICES,                   )
                            )
          Respondent.       )
                            )

                                                    OPINION

        Before the Court is Petitioner, Dennis Pickens’ (“Pickens”), Motion for Review of the
Special Master’s Decision Awarding Attorneys’ Fees and Costs on an Interim Basis, ECF No.
64. (Petitioner’s Motion for Review, ECF No. 66, Petitioner’s Memorandum of Objections in
Support of Motion for Review (“MFR Memo”), ECF No. 67). For the reasons set forth below,
the Court DENIES Pickens’ Motion for Review and AFFIRMS the decision of the Special
Master. Further, the Court expresses no opinion as to whether Pickens should be awarded
attorneys’ fees for pursuing the present motion, as this is a matter for the Special Master to
decide in the first instance.

    I.       Background

        On February 8, 2017, Pickens filed a petition for compensation under the Vaccine Act,
claiming to suffer from chronic inflammatory demyelinating polyneuropathy (“CIDP”) after
receiving a measles-mumps-rubella (“MMR”) vaccine on February 9, 2015. Thereafter, Pickens
filed medical records, respondent, the Secretary of the Department of Health and Human
Services (“the Secretary”), filed a Rule 4(c) report contesting Pickens’ entitlement to
compensation, and both parties filed expert reports.

         On June 11, 2019, the Special Master held a fact hearing in Washington, D.C., where
Pickens and his counsel, Mr. Downing, appeared in person. In addition, several other witnesses
testified via video teleconference from Mexico. Mr. Downing’s associate was present in Mexico

1
  Pursuant to Vaccine Rule 18(b), contained in Appendix B of the Rules of the United States Court of Federal
Claims, the parties were afforded a period in which to redact any confidential, privileged, or private medical
information from this opinion. As no redactions were proposed, the Court reissues this opinion in its entirety.
and questioned the witnesses.

       On June 15, 2019, Pickens filed a request for interim attorneys’ fees and costs, seeking
$70,035.73, including $53,317.00 in interim attorneys’ fees and $16,664.73 in interim costs. (See
Decision Awarding Attorneys’ Fees and Costs (“IAFC Decision I”) at 2, ECF No. 61). On July
16, 2019, the Secretary filed a response, deferring to the Special Master on whether interim fees
and costs were appropriate under Avera v. HHS, 515 F.3d 1343 (Fed. Cir. 2008), and on the
reasonableness of the requested fees and costs. (ECF No. 56).

        On September 5, 2019, the Special Master granted Pickens’ request for interim attorneys’
fees and costs, but awarded a reduced amount totaling $56,159.28. (IAFC Decision I, ECF No.
61 at 2, 9). The Special Master determined that the petition was brought in good faith, that there
was a reasonable basis for the claim, and that Pickens sufficiently demonstrated “undue
hardship.” The Special Master then considered the reasonableness of the requested amount, using
the lodestar method, and determined that certain reductions were necessary.

         The Special Master determined that a reduction of $4,847.50 for attorneys’ fees was
warranted because Mr. Downing charged higher hourly rates than he charged in other cases
before the Office of Special Masters in years 2016, 2017 and 2018, Mr. Downing and his
paralegals billed for certain clerical work, and Mr. Downing’s associate billed her full rate for
travel, rather than one-half the typical rate. (Id. at 5–7). The Special Master also determined that
the costs for Mr. Downing’s and Pickens’ first-class airfare and stay at the JW Marriott were
exorbitant, reducing the flight costs from $1,978.61 per ticket to $600 per ticket and hotel costs
from $590.44 per night to $400 per night. (Id. at 8–9). The Special Master denied the $79 request
for airport parking because the necessary receipts could not be located. (Id. at 8). Finally, the
Special Master denied without prejudice Dr. Friedman’s expert fees because checks had been
photocopied over the relevant invoices rendering those invoices illegible. (Id. at 9). The Special
Master explained that Pickens could resubmit these fees in the final fee request. (Id. at 9).

        On September 6, 2019, Pickens filed a Motion for Reconsideration, challenging four
areas of the Special Master’s IAFC Decision I: (1) lodging costs; (2) Dr. Friedman’s expert fees;
(3) clerical work; and (4) airport parking. (See ECF No. 62). On September 20, 2019, the Special
Master granted-in-part the Motion for Reconsideration and vacated the IAFC Decision I, noting
that Vaccine Rule 10(e) directs special master to grant or deny such motions “in the interest of
justice.” (Order Granting Motion for Reconsideration In Part and Vacating Decision Issued
September 6, 2019, (“Order Granting Motion for Reconsideration”), ECF No. 63). The Special
Master determined that Pickens had, in fact, included the receipts for airport parking in the
original fee request and that these costs should therefore be reimbursed. The Special Master
denied the motion in all other respects.

        With regard to lodging costs, the Special Master noted that a “request for fees must be
complete when submitted” and that in the initial request for attorneys’ fees and costs, Pickens did
not present information about other hotels or information showing that the JW Marriott was the
cheapest option at the time of the hearing. (Order Granting Mot. for Reconsideration at 1–2). The
Special Master advised that “in future cases, the proffer of evidence in conjunction with the
filing of a motion for attorneys’ fees may produce a different outcome.” (Id. at 2).

                                                 2
        As for Dr. Friedman’s invoices, the Special Master noted that Pickens’ motion added
legible copies of the invoices in question but nevertheless denied the motion for reconsideration.
The Special Master explained “Petitioner was responsible for presenting a complete fee
application” and that “Dr. Friedman’s invoice was not denied entirely—just deferred.” (Id.) The
Special Master reasoned that “adjudicating the reasonableness of Dr. Friedman’s work would
otherwise delay adjudication of this motion [for reconsideration],” and “[r]ather than delay
payment to petitioner to work on the request for Dr. Friedman, the undersigned will issue a
decision on the less involved aspect of the fee application more quickly.” (Id.)

        Finally, the Special Master denied reconsideration of the reduction in fees for clerical
work performed by Mr. Downing, noting that the “motion for reconsideration does not contest
that paralegals billed for clerical activities,” but instead claims that “Mr. Downing’s work was
not clerical at all.” (Id.) The Special Master again reviewed the invoices and determined that Mr.
Downing spent time arranging his travel and reviewing routine notices of filing. In addition, the
Special Master concluded “Mr. Downing’s work with the medical records seems ambiguous,”
and “[i]t is not entirely clear whether his work in reviewing the records was clerical or legal.”
(Id.). Accordingly, the Special Master maintained that “the reduction of 5.25 percent remains a
reasonable, even if rough, estimate.” (Id.)

       On September 20, 2019, the Special Master issued an Unpublished Decision Awarding
Attorneys’ Fees and Costs on an Interim Basis. ((“IAFC Decision II”), ECF No. 64). In this
decision, the Special Master awarded a total of $56,238.28 in attorneys’ fees and costs.

        On October 2, 2019, Pickens filed the present Motion for Review. (ECF Nos. 66, 67). On
November 1, 2019, the Secretary filed its Response. (Respondent’s Memorandum in Response to
Petitioner’s Motion for Review (“Respondent’s Resp.”), ECF No. 71). On December 6, 2019,
Pickens filed its Reply. (Petitioner’s Reply in Support of Petitioner’s Motion for Review
Regarding Interim Attorneys’ Fees and Costs (“Petitioner’s Reply”), ECF No. 75).

   II.     Legal Authority and Standard of Review

        Under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 34
(“the Vaccine Act”), as amended, attorneys’ fees and costs may be awarded so long as the
petitioner shows that the petition was brought in good faith and there was a reasonable basis for
the claim. 42 U.S.C. § 300aa-15(e); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,
1352 (Fed. Cir. 2008). In addition, attorneys’ fees and costs may be awarded on an interim basis
where a petitioner demonstrates “undue hardship.” See Avera, 515 F.3d at 1352. Although there
is no clear guidance on what constitutes “undue hardship,” the Federal Circuit has explained that
“[i]nterim fees are particularly appropriate in cases where proceedings are protracted and costly
experts must be retained.” Id.; see also McKellar v. Sec’y of Health & Human Servs., 101 Fed.
Cl. 297, 300 (2011) (“The ruling in Avera nevertheless suggests that there is not a presumption
of entitlement to interim fees.”).

        In making a fee request, “[t]he fee applicant (whether a plaintiff or a defendant) must, of
course, submit appropriate documentation to meet ‘the burden of establishing entitlement to an

                                                 3
award.’” Fox v. Vice, 563 U.S. 826, 838 (2011) (citation omitted); Savin ex rel. Savin v. Sec’y of
Health & Human Servs., 85 Fed. Cl. 313, 317 (2008) (“the request for fees must be complete
when submitted.”). Moreover, Special Masters have an independent duty to determine whether
an award of interim fees is appropriate and may reduce an award sua sponte, “even if the
opposing party has not lodged an objection in support of the reduction.” Dominguez v. Sec’y of
Health & Human Servs., 136 Fed. Cl. 779, 784–85 (2018). Thus, Special Masters are afforded
“wide discretion in determining the reasonableness of costs, as well as attorneys’ fees.” Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir.
1994).

        This Court has jurisdiction to review the decisions of a Special Master in a Vaccine Act
case. 42 U.S.C. § 300aa-12(e)(2). Pursuant to Vaccine Rule 13(b) of the Rules of the United
States Court of Federal Claims, an award of attorneys’ fees and costs is “a separate decision”
subject to review by one of the judges of this Court. The standard of review in this Court
depends on which aspect of the special master’s decision is under scrutiny: “Fact findings are
reviewed . . . under the arbitrary and capricious standard[,] legal questions under the ‘not in
accordance with law’ standard[,] and discretionary rulings under the abuse of discretion
standard.” Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
“The special master’s determination of reasonable attorneys’ fees and costs in a Vaccine Case is
a discretionary ruling that is entitled to deference from this Court.” Caves v. Sec’y of Health &
Human Servs., 111 Fed. Cl. 774, 778–79 (2013) (citing Saxton ex rel. Saxton v. Sec’y of Health
& Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993)). “An abuse of discretion exists ‘when the
trial court’s decision is clearly unreasonable, arbitrary or fanciful, or is based on clearly
erroneous findings of fact or erroneous conclusions of law.’” Lazare Kaplan Int’l, Inc. v.
Photoscribe Techs., Inc., 714 F.3d 1289, 1293 (Fed. Cir. 2013) (quoting Fiskars, Inc. v. Hunt
Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002) (internal citation omitted)).

    III.      Discussion

        In its Motion for Review, Pickens challenges three aspects of the Special Master’s IAFC
Decision II as being arbitrary and capricious: 2 (1) reduction of lodging costs for Mr. Downing
and his client’s two-night stay at the JW Marriott; (2) deferral of an award for Dr. Friedman’s
expert fees; and (3) reduction of attorneys’ fees for clerical work performed by Mr. Downing.
The Court will address each in turn.

           A. Lodging Costs

         Pickens contends that the Special Master acted arbitrarily in awarding only $400 per
night, rather than the requested $590.44 per night, for Pickens’ and Mr. Downing’s two-night
stay at the JW Marriott. (MFR Memo at 4–5). According to Pickens, since 2003, Mr. Downing
has always stayed at the JW Marriott for Vaccine Act hearings and been reimbursed in full
because it is “one of the lower priced options in close proximity to the Court.” (Id. at 4). Pickens
argues that it is a legal error to make a “rule” that hotels must be under $400, without providing
notice of such “policy change.” (Id.) Pickens acknowledges that documentation of comparable

2
  Although Pickens characterizes these alleged errors as arbitrary and capricious or simply “legal errors,” the correct
standard of review for discretionary rulings such as these is “abuse of discretion.”

                                                           4
hotels showing that the JW Marriott was the cheapest option was not presented with the initial
fee request but maintains that it was legal error for the Special Master to refuse to consider this
information when presented in the motion for review. (Id.)

        The Special Master’s decision in this regard was not an abuse of discretion, arbitrary,
capricious, or contrary to law. In both the IAFC Decisions, as well as in the Order Granting
Motion for Reconsideration, the Special Master noted that costs may not be awarded if complete
documentation substantiating those costs are not presented at the time of the request. (IAFC
Decisions ECF Nos. 61 at 8, 64 at 8; Order Granting Mot. for Reconsideration at 1). Pickens
acknowledges that no documentation regarding the hotel costs was provided with the initial
request. (MFR Memo at 4, 5 n.1). Nevertheless, the Special Master awarded $400 per night for
those costs and advised that “in future cases, the proffer of evidence in conjunction with the
filing of a motion for attorneys’ fees may produce a different outcome.” (Order Granting Mot.
for Reconsideration at 2). In short, the Special Master found that Pickens failed to carry its
burden of substantiating the hotel costs, awarded an amount he considered reasonable, and
advised Mr. Downing to provide proper documentation in the future. There is no error or abuse
of discretion in this decision.

       B. Dr. Friedman’s Expert Fees

        The Special Master denied, without prejudice, reimbursement of Dr. Friedman’s expert
fees because Pickens photocopied checks over the relevant invoices rendering those invoices
illegible. The Special Master advised Pickens that these costs could be resubmitted in the final
fee request. Pickens argues that it was arbitrary and capricious for the Special Master to defer an
award of these costs due to “a simple clerical error.” (MFR Memo at 9). According to Pickens,
the Court should have alerted Mr. Downing to the issue and allowed him to resubmit the invoices
properly before deciding the initial request. (Id.) Pickens is further disgruntled by the Special
Master’s denial of reconsideration as to these costs after Pickens provided “clean” copies of the
invoices with the Motion for Reconsideration. (See id.)

        Pickens’ arguments in this regard are unpersuasive. Pickens was responsible for
providing proper documentation with the interim request for attorneys’ fees and costs and failed
to do so. As the Special Master correctly observed, “[i]nterim awards should not be awarded as a
matter of right.” (IAFC Decision II at 4 (citing Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008)); see also McKellar v. Sec’y of Health & Human Servs., 101
Fed. Cl. 297, 300 (2011). Rather than deny reimbursement for these costs altogether, the Special
Master, in his discretion, deferred the request until the final fees motion. There is nothing clearly
unreasonable, arbitrary or fanciful about this decision. See Lazare Kaplan Int’l, Inc. v.
Photoscribe Techs., Inc., 714 F.3d 1289, 1293 (Fed. Cir. 2013).

       C. Clerical Work

        The Special Master awarded reduced attorneys’ fees because “Mr. Downing billed time
for clerical tasks, namely, drafting notices of filing, and arranging his hearing-related travel
plans.” (IAFC Decision II at 7). Pickens argues this decision was arbitrary and capricious
because these are tasks that could only be completed by an attorney or lead trial counsel in the

                                                  5
case. (MFR Memo at 10). According to Pickens, a Notice of Filing is a legal document that must
be “drafted, or at a minimum approved, by a lawyer,” and it would be unethical to require a
paralegal to draft and file a legal document without Counsel’s review and approval. (Id.) Pickens
also claims that Mr. Downing was the “only one” who could coordinate the logistics for the
videoconference from Mexico. (Id.)

        The Special Master did not abuse his discretion in awarding reduced attorneys’ fees for
these tasks. While a notice of filing may indeed require a signature from the attorney of record,
legal training is not required to notify the Court that a document is being filed. Further, the
Special Master credited in full Mr. Downing’s work coordinating the videoconference from
Mexico. (See Order Granting Mot. for Reconsideration at 2 n.1). It is strange that Pickens would
attempt to relitigate this point, rather than the reduction for Mr. Downing arranging his travel,
which was specifically cited to in the Order Granting Motion for Reconsideration. (See id. at 2).
Nonetheless, it appears Mr. Downing did bill for arranging his own travel. It was an appropriate
exercise of discretion to reduce the award of attorneys’ fees for these tasks.

       Finally, Pickens challenges the Special Master’s reduction for “updating medical
records.” (MFR Memo at 10). It should be noted that the IAFC Decision I contains the “updating
medical records” language when listing Mr. Downing’s clerical tasks but the IAFC Decision II
does not. (Compare IAFC Decision I at 7, with IAFC Decision II at 7). However, in the Order
Granting Motion for Reconsideration, the Special Master stated “Mr. Downing’s work with the
medical records seems ambiguous,” explaining “[i]t is not entirely clear whether his work in
reviewing the records was clerical or legal.” (Order Granting Mot. for Reconsideration at 2).
Regardless of whether the work was specifically named in the list of clerical tasks in the IAFC
Decision II, the Special Master was clearly concerned with Mr. Downing’s billing entries.

        The Special Master’s reduction for the ambiguous review of medical records was not an
abuse of discretion. As explained above, a petitioner has the burden to prove the reasonableness
of his fees and costs request when filed. See Fox v. Vice, 563 U.S. 826, 838 (2011). Early in this
case, the Special Master issued guidance regarding attorneys’ fees and costs, which listed vague
billing entries as an area of concern. (See Order Regarding Attorneys’ Fees and Costs, ECF No.
7). Nevertheless, Pickens submitted a request for attorneys’ fees with an ambiguous description
of Mr. Downing’s work with the medical records. The Special Master was unable to determine
whether Mr. Downing’s work was clerical or legal and reduced the award accordingly. The
Special Master did not err in so doing.

   IV.     Conclusion

       For the reasons set forth above, the Court hereby DENIES Pickens’ Motion for Review.
Furthermore, the Court expresses no opinion on the Secretary’s argument that Pickens should not
be awarded legal fees for pursuing this Motion for Review, as that is a matter for the Special
Master to decide in the first instance. The decision of the Special Master is AFFIRMED.

      The parties are directed to file redactions to this opinion, if any, by no later than
Thursday, January 16, 2020.



                                                  6
IT IS SO ORDERED.

                        s/   David A. Tapp
                        DAVID A. TAPP, Judge




                    7
