         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-0774V
                                    Filed: October 10, 2017
                                        UNPUBLISHED
*********************************
MELISSA JONES,                                   *
                                                 *
                        Petitioner,              *
                v.                               *
                                                 *        Attorneys’ Fees and Costs;
SECRETARY OF HEALTH                              *        Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                              *
                                                 *
                        Respondent.              *
                                                 *
****************************
Joseph Tedford McFadden, RawlsMcNelis, PC, Norfolk, VA, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

       Before the undersigned is petitioner’s June 2, 2017 motion for attorneys’ fees
and costs. Pet’r’s Mot. (ECF No. 42). In her motion, petitioner requests attorneys’ fees
in the amount of $57,493.90, attorneys’ costs in the amount of $964.81, for a total
amount of $58,458.71. Id. at 8. For the reasons discussed below, the undersigned
reduces this amount and awards $45,995.12 in attorneys’ fees and $964.81 in
attorneys’ costs for a total of $46,959.93 in attorneys’ fees and costs.

    I.      Background

        On July 23, 2015, Melissa Jones (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq.,2 (the “Vaccine Act”). Petitioner alleged that she suffered from severe anaphylaxis,



1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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 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.
hypotension, and acute cholecystitis which required a cholecystectomy as a result of an
influenza (“flu”) vaccine she received on November 2, 2012. On December 6, 2016, the
undersigned issued a decision awarding compensation to petitioner based on the
parties’ joint stipulation. (ECF No. 36).

       On June 2, 2017, petitioner filed a motion for attorneys’ fees and costs. Pet’r’s
Mot. (ECF No. 42). In compliance with General Order #9, petitioner has filed a signed
statement indicating she did not incur any out-of-pocket expenses.

       Petitioner seeks attorneys’ fees in the amount of $57,493.90 which reflects the
following hourly rates:

                1) $311 for work performed in 2011 by Dr. Rodriguez;
                2) $323 for work performed in 2012 by Dr. Rodriguez;
                3) $335 for work performed in 2012 by Dr. Rodriguez;
                4) $348 for work performed in 2014 by Dr. Rodriguez;
                5) $361 for work performed in 2015 by Dr. Rodriguez;
                6) $375 for work performed in 2016 by Dr. Rodriguez;
                7) $321 for work performed in 2014 by Elizabeth Muldowney;
                8) $333 for work performed in 2015 by Elizabeth Muldowney;
                9) $337 for work performed in 2014 by Joseph McFadden, Jr.;
                10) $350 for work performed in 2015 by Joseph McFadden, Jr.;
                11) $363 for work performed in 2016 by Joseph McFadden, Jr.;
                12) $131 for paralegal work performed in 2014;
                13) $135 for paralegal work performed in 2015;
                14) $140 for paralegal work performed in 2016; and
                15) $145 for paralegal work performed in 2017.

Pet’r’s Mot. at 4; Exhibit 16 (billing records).

       Petitioner additionally requests attorneys’ costs in the amount of $964.81, for a
total amount of $58,458.71. Pet’r’s Mot. at 8.

        On June 5, 2017, respondent filed a response to petitioner’s motion. Resp. (ECF
No. 43). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that she “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Petitioner “respectfully recommends that the Chief Special Master


2National 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
exercise her discretion and determine a reasonable award for attorneys’ fees and
costs.” Id. at 3. Petitioner did not file a reply.

        Petitioner’s motion for attorney’s fees and costs is now ripe for adjudication.


I.      Discussion

       Under the Vaccine Act, the special 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; he is therefore entitled to
an award of reasonable attorneys’ fees and costs.3

        The Federal Circuit has approved use of the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a
court first determines “an initial estimate of a reasonable attorneys’ fee by ‘multiplying
the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347–58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee
award based on other specific findings. Id. at 1348.

         Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of
Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Counsel should not include in
their fee requests hours that are “excessive, redundant, or otherwise unnecessary.”
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cl. 1993) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the special master may
reduce a fee request sua sponte, apart from objections raised by respondent and
without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).

        An application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file,
whether the amount requested is reasonable. 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 (Fed. Cl. Spec. Mstr. July 27, 2009). Petitioners bear the burden of
documenting the fees and costs claimed. Rodriguez, 2009 WL 2568468, at *8. Block

3 In addition, § 300aa–15(e)(3) states that “[n]o attorney 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
billing, or billing large amounts of time without sufficient detail as to what tasks were
performed, is clearly disfavored. See, e.g., Broekelschen v. Sec’y of Health & Human
Servs., No. 07-137V, 2008 WL 5456319, at *4-5 (Fed. Cl. Spec. Mstr. Dec. 17, 2008).

        In determining a reasonable number of hours expended, a line-by-line evaluation
of the fee application is not required. Wasson v. Sec’y of Health & Human Servs., 24
Cl.Ct. 482, 484, aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters
may rely on their experience with the Vaccine Act and its attorneys to determine the
reasonable number of hours expended. Id. Just as “[t]rial courts routinely use their
prior experience to reduce hourly rates and the number of hours claimed in attorney fee
requests .... [v]accine program special masters are also entitled to use their prior
experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.

           a. Reasonable Hourly Rates

       Consistent with other special masters, the undersigned finds that a reasonable
hourly rate for Mr. McFadden’s work is $337.00 per hour in 2014, $350.00 per hour in
2015, and $363.00 per hour in 2016. See Eberhart v. Sec’y of Health & Human Servs.,
No. 16-169V, 2016 WL 1718798, at *7 (Fed. Cl. Spec. Mstr. July 13, 2017). These
rates are within the ranges set forth in the Office of Special Masters Attorneys’ Forum
Hourly Rate Fee Schedule: 2015-2016 which can be found on the court’s website.4

       The undersigned has previously awarded attorneys’ fees based upon the same
hourly rates requested in this case for work performed by Dr. Rodriguez and at least
one of the paralegals in this case in 2014-2016. See Zdroik v. Sec’y of Health & Human
Servs., No. 15-468V, 2017 WL 767852 (Fed. Cl. Spec. Mstr. Feb. 3, 2017). These rates
are also within the ranges set forth in the Office of Special Masters Attorneys’ Forum
Hourly Rate Fee Schedule: 2015-2016. The undersigned also finds the hourly rate of
$311 for work performed in 2011 and $323 for work performed in 2012 by Dr. Rodriguez
to be reasonable. The hourly rates requested for work performed by paralegals in 2014-
2017 is also reasonable.

           b. Reduction of Billable Hours

      The undersigned has previously reduced the fees paid to petitioners due to
excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No.
10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee
award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health
& Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691
(2016). The undersigned and other special masters have previously noted the

4 http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf
(last visited on September 28, 2017).

                                                  4
inefficiency that results when cases are staffed by multiple individuals and have reduced
fees accordingly. See Sabella, 86 Fed. Cl. at 209. The undersigned similarly reduces
the fee request in this case, finding many billing entries excessive and duplicative.

        Nearly two-thirds of the 219.9 hours billed by petitioner’s counsel is for work
completed in the three years prior to the filing of Ms. Jones’s petition. In that time,
petitioner’s counsel billed roughly 70 hours of work by three paralegals and two partners
for requesting, receiving, reviewing, and summarizing medical records. See Exhibit 16,
passim. Mr. McFadden’s billing accounted for approximately 40 of those hours spent
reviewing records in addition to the work performed by paralegals to review medical
records and produce a medical summary. Id. In the two months following the filing of
Ms. Jones’ petition, Mr. McFadden billed nearly ten more hours of record review. Id. at
21-22. The undersigned finds the hours billed for reviewing medical records to be
duplicative and excessive.

        Likewise, the petition was drafted, edited, and reviewed in a process involving
two partner level attorneys and three paralegals. Petitioner’s counsel billed over 40
hours for the preparation and filing of her six page petition and roughly ten pages of
affidavits. Over 18 of these hours were billed by two partners for drafting, editing, and
finalizing the petition and affidavits. See e.g. Exhibit 16 at 18-19. The undersigned
finds the hours billed for these tasks to be duplicative and excessive.

       Before her November 2, 2012 vaccination, petitioner contacted the firm in
September 2011, and the fees from that consultation are included in petitioner’s
application here. Exhibit 16 at 2. Petitioner’s request for attorneys’ fees from before the
date of her vaccination will not be awarded.5

       Billing for clerical and other secretarial work is not permitted in the Vaccine
Program. Rochester v. United States, 18 Cl. Ct. 379, 387 (1989) (denied an award of
fees for time billed by a secretary and found that “[these] services … should be
considered as normal overhead office costs included within the attorneys’ fees rates”);
Mostovoy v. Sec’y of Health & Human Servs., 2016 WL 720969, *5 (Fed. Cl. Spec.
Mstr. Feb. 4, 2016). Petitioner’s billing records reflect numerous entries for tasks that
are clerical in nature including taking phone messages, creating hard copy files, and
establishing paperwork for Ms. Jones as an incoming client. See e.g. Exhibit 16 at 8-
10.

       For all of these reasons, the undersigned reduces petitioner’s entire fee award by
20 percent. See Ericzon, 2016 WL 447770 (reducing fee award by 10 percent); Barry,
2016 WL 6835542 (reducing fee award by 10 percent); Raymo, 2016 WL 7212323
(reducing fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016); see

5
 The undersigned finds it curious that billing from before petitioner’s vaccination would be included in her
attorneys’ fees application. To the extent that petitioner’s counsel may have been pursuing other claims
on her behalf, that work cannot be compensated here.
                                                     5
also Wasson, 24 Cl. Ct. at 484 (a line-by-line evaluation is not required in determining a
reasonable number of hours expended), aff’d in relevant part, 988 F.2d 131 (Fed. Cir.
1993). This adjustment results in a reduction of $11,498.78.

             c. Costs

      Petitioner requests reimbursement for attorney costs in the amount of $964.81.
The undersigned finds no cause to reduce petitioner’s request and awards the full
amount sought.


    II.      Conclusion

      Accordingly, the undersigned awards a lump sum of $46,959.93,
representing reimbursement for attorneys’ fees and costs, in the form of a check
payable jointly to petitioner and petitioner’s counsel, Joseph T. McFadden, Esq.

          The clerk of the court shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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