    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                          No. 15-1161V
                                     Filed: August 21, 2019

* * * * * * * * * * * * *  *
EOIN COFFEY,               *                               UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                               Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Andrew Downing, Esq., Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Lara Englund, Esq., United States Department of Justice, Washington, DC, for respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

         On October 9, 2015, James and Christina Coffey filed a petitioner for compensation under
the National Vaccine Injury Compensation Program on behalf of their son, E.C., who was a minor
at the time of filing.2 Eoin Coffey (“petitioner”) has since reached the age of majority and the
caption in this matter was amended to reflect this change on April 15, 2019. Petitioner alleged
that he developed a neurologic disorder after receiving an influenza (“flu”) vaccination on
September 9, 2015, and a Prevnar-13 vaccine on October 10, 2012. Stipulation at ¶¶ 1-4, ECF
No. 60. On May 16, 2019, the parties filed a stipulation, which the undersigned adopted as her
Decision awarding compensation on the same day. ECF No. 61.


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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 May 20, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.
41 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$26,139.04 (representing $20,400.00 in attorneys’ fees and $5,739.04 in costs). Fees App. at 1.
Additionally, petitioner requests attorneys’ fees and costs in the amount of $28,940.61
(representing $25,195.70 in fees and $3,744.91 in costs) for the work of his former counsel. Id.
at 2. Pursuant to General Order No. 9, petitioner warrants that he has not incurred any costs in
pursuit of this litigation. Id. at 3. Respondent responded to the motion on May 20, 2019, 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.” Response at 2-3, ECF No. 64. 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


                                                  2
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
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

         The undersigned has reviewed the requested hourly rates for the numerous attorneys who
have worked on petitioner’s case (five attorneys from Conway, Homer, P.C. and two attorneys
from Van Cott & Talamante, PLLC worked on this case). All of the requested rates are consistent
with what these individuals have previously been awarded for their Vaccine Program work in the
given years and the undersigned finds them to be reasonable. Accordingly, no adjustment to the
rates is necessary.

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
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.,
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%20Schedule
%202018.pdf.
The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%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).


                                                   3
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 undersigned has reviewed the billing entries submitted by petitioner for the work of
his attorneys. For the work performed by Conway, Homer, P.C., the undersigned finds that the
billed hours all appear reasonable and that no reduction is necessary. For the work performed by
Van Cott & Talamante, PLLC, the undersigned finds it necessary to reduce the number of paralegal
hours billed due to excessive time billed for tasks such as reviewing scheduling orders and filing
documents. This issue has previously been noted by the undersigned. See Butler v. Sec’y of Health
& Human Servs., No. 16-1027V, 2019 WL 1716073, at *3 (Fed. Cl. Spec. Mstr. Mar. 20, 2019).
To correct for this issue, the undersigned shall reduce the hours billed by paralegal Danielle Avery
by 10%, resulting in a reduction of $180.90.4 Accordingly, the undersigned finds that petitioner is
entitled to final attorneys’ fees of $25,195.70 for the work of Conway, Homer, P.C., and
$20,219.10 for Van Cott & Talamante, PLLC.

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 $3,744.91 in costs for Conway, Homer, P.C. and $5,739.04 in costs for Van Cott &
Talamante, PLLC. These amounts are comprised of acquiring medical records, postage, and work
performed by petitioner’s expert, Dr. Anthony Rodrigues. The undersigned has reviewed the
submitted documentation supporting the costs and finds that all of the requested costs are
reasonable and adequately supported. Accordingly, the full amount of costs for each firm is
awarded to petitioner.

                                                      III. Conclusion

    In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that petitioner is entitled to an award of attorneys’ fees and costs as follows:

      1) $25,958.14, representing reimbursement for petitioner’s attorneys’ fees and costs, in
         the form of a check payable jointly to petitioner and his counsel, Mr. Andrew
         Downing, Esq.; and


4
    (13.4 hours * $135.00 per hour) = $1,809.00 * 0.1 = $180.90.


                                                           4
    2) $28,940.61, representing reimbursement for petitioner’s attorneys’ fees and costs, in
       the form of a check payable jointly to petitioner and his former counsel, Mr. Ronald
       Homer, Esq.

        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).

                                                    5
