    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                       No. 16-641V
                                    Filed: May 9, 2019

* * * * * * * * * * * * * *
RONALD L. EDWARDS,         *                         UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                         Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Leah Durant, Esq., Washington, DC, for Petitioner.
Adriana Teitel, Esq., United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

        On May 31, 2016, Ronald L. Edwards (“Mr. Edwards” or “Petitioner”) filed a petition
pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleges that he
developed Guillain-Barré Syndrome (“GBS”) after receiving the tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccine on September 12, 2014. Petition, ECF No. 1. On July 27, 2018, the
parties filed a stipulation, which the undersigned adopted as her Decision awarding damages on
July 30, 2018. ECF No. 34.


1
  The undersigned intends 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, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access. Because this unpublished
ruling contains a reasoned explanation for the action in this case, the undersigned is 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
    National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
         On January 30, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF
No. 39 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$48,591.95 (representing $37,143.00 in attorneys’ fees and $11,448.95 in costs). Fees App at 1.
Pursuant to General Order No. 9, Petitioner warrants that he has not incurred any costs in pursuit
of this litigation. Id. Respondent responded to the motion on February 13, 2018, stating
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case” and requesting that the undersigned “exercise her discretion and determine a
reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3. ECF No. 40. Petitioner did
not file a reply thereafter.

        This matter is now ripe for consideration.

I.     Legal Framework

        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). Here, because Petitioner
was awarded compensation, he is entitled to a reasonable award of attorneys’ fees and costs.

        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 v. Sec'y of
Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial
estimate of a reasonable attorneys' fees” 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.

        Special masters have substantial discretion in awarding fees 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 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee
application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed.
Cl. 719, 729 (2011).

II.    Discussion

       a. Reasonable Hourly Rate

        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.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, 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 attorney's fees


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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
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 (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 accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3

        Petitioner requests that his attorney, Ms. Leah Durant, be compensated at the following
rates: $350.00 per hour for work performed in 2015, $350.00 per hour for work performed in 2016,
$365.00 per hour for work performed in 2017, $377.00 per hour for work performed in 2018, and
$391.00 per hour for work performed in 2019. Fees App. Ex. 1 at 12. These rates are consistent
with what Ms. Durant has been awarded for her work in the Vaccine Program with the exception
of the requested 2019 rate. Previously, the Chief Special Master considered Ms. Durant’s proposed
2019 rate and found it to be excessive, choosing to compensate her work at $380.00 per hour
instead. Lee v. Sec’y of Health & Human Servs., No. 17-1270V, slip op. at 3-4 (Fed. Cl. Spec.
Mstr. Apr. 10, 2019). The undersigned agrees with the Chief Special Master’s well-reasoned
analysis for the reduction of Ms. Durant’s proposed 2019 rate and shall do the same in the instant
case. This results in a reduction of $38.50.4

         b. Hours Reasonably Expended

         Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. 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
3
 The 2015-2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-
2016.pdf. The 2017 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S
chedule%202018.pdf.
The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S
chedule%202019.pdf. The hourly rates contained within the schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015).
4
    ($391.00 - $380.00) * 3.5 hours of work in 2019 = $38.50.
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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). While attorneys may be compensated for non-attorney-level work, the rate must be
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).
Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 2015 WL 5634323, at *26. 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). And “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). Ultimately, 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, 102 Fed. Cl. at 728–
29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

        The overall hours spent on this matter (110.7) appear to be reasonable. The undersigned
has reviewed the billing entries and finds that the billing entries adequately describe the work done
on the case and the amount of time spent on that work. None of the entries appear objectionable
and Respondent has not identified any entries as objectionable either. Accordingly, petitioner is
entitled to a final award of attorneys’ fees in the amount of $37,104.50.

          c. Reasonable Costs

         Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $11,448.95 in costs. Fees App. Ex. B. The majority of this amount ($7,000.00) is for the expert
services of Dr. John Rinker, II in reviewing medical records and preparing an expert report. The
undersigned finds that this amount is reasonable for the services that Dr. Rinker provided in this case and
shall reimburse it in full. The remainder of the costs consists of acquiring medical records and postage.
Petitioner has provided adequate documentation for these costs, and all appear reasonable in the
undersigned experience. Accordingly, Petitioner is entitled to a full reimbursement of attorneys’ costs.

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:

       1) A lump sum in the amount of $48,553.45, representing reimbursement for Petitioner’s
          attorneys’ fees and costs, in the form of a check payable to Petitioner and Ms. Leah
          Durant, Esq.




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        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.5


       IT IS SO ORDERED.


                                             s/Mindy Michaels Roth
                                             Mindy Michaels Roth
                                             Special Master




5
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
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