In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS

*********************
EDWARD A. SOKOL,         *
                         *                          No. 16-1631V
                         *                          Special Master Christian J. Moran
             Petitioner, *
v.                       *
                         *                          Filed: August 28, 2019
SECRETARY OF HEALTH      *
AND HUMAN SERVICES,      *
                         *                          Attorneys’ fees and costs, interim
             Respondent. *                          award
*********************

Jeffrey A. Golvash, Brennan, Robins & Daley, P.C., Pittsburgh, PA, for Petitioner;
Voris E. Johnson, United States Dep’t of Justice, Washington, D.C., for
Respondent.

                   UNPUBLISHED DECISION AWARDING
             ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

      On December 12, 2016, Edward Sokol (“Petitioner”) filed a petition under
the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa–10 through 34
(2012). Petitioner claims that he suffered from a cerebral aneurysmal rupture after
receiving an influenza (“flu”) vaccine on January 22, 2014. Pet., filed Dec. 12,
2016, at 1. Petitioner’s counsel of record is Mr. Jeffrey Golvash.

      On May 3, 2017, the Secretary argued that compensation was not
appropriate because petitioner’s flu-like symptoms had resolved before he
presented to the ER in February 2014, which suggests that petitioner’s


       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
inflammation had already ended. Resp’t’s Rep. at 6. The Secretary also argued
that petitioner’s expert, Dr. George A. Small, had failed to address this issue, cited
no literature in support of his opinion, and ignored petitioner’s hypertensive
emergency in the ER, even though uncontrolled hypertension is a major risk factor
for aneurysmal ruptures. Id. at 5–6.

      To develop his case, petitioner filed reports from one expert, Dr. George A.
Small, a neurologist. Exhibits 7, 9, 16. In rebuttal, the Secretary filed reports from
one expert, Dr. Steven R. Messé, a specialist in neurology and vascular neurology.
Exhibits A, C. An entitlement hearing was held on April 3, 2019, where the
experts testified.

       On May 22, 2019, petitioner moved for an award of attorneys’ fees and costs
on an interim basis, requesting $63,191.00 in fees and $12,248.19 in costs, for a
total of $75,439.19. Pet’r’s Mot. IAFC at 5. For the reasons that follow,
petitioner is awarded $66,383.19.

                                    *     *       *

       The requested fees include work performed and costs incurred through May
7, 2019. Id., Exhibit A at 10. Petitioner argues that an award of interim fees and
costs is appropriate in this case for two reasons. First, petitioner argues that his
claim satisfies the good faith and reasonable basis criteria. Pet’r’s Mot. IAFC at 3-
4. Second, he argues that the proceedings have been ongoing for “over three
years” and that petitioner’s counsel “has been working on the case since October
2014.” Id. at 4.

       The Secretary filed his response to petitioner’s motion on May 29, 2019.
Resp’t’s Resp. The Secretary did not provide any objection to petitioner’s request.
Id. Instead, he stated that he “defers to the Special Master to determine whether or
not petitioner has met both the legal standard for an interim fees and costs award as
set forth in Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir.
2008), and the statutory requirements for an award of attorney’s fees and costs
under 42 U.S.C. § 300aa-15(e)(1)(A)-(B).” Id. at 2.

      This matter is now ripe for adjudication.

                                    *     *       *

                                              2
       Petitioner’s motion implicitly raises a series of sequential questions, each of
which requires an affirmative answer to the previous question. First, whether
petitioner is eligible under the Vaccine Act to receive an award of attorneys’ fees
and costs? Second, whether, as a matter of discretion, petitioner should be
awarded his attorneys’ fees and costs on an interim basis? Third, what is a
reasonable amount of attorneys’ fees and costs? These questions are addressed
below.

   1. Eligibility for an Award of Attorneys’ Fees and Costs

       As an initial matter, interim fee awards are available in Vaccine Act cases.
Avera, 515 F.3d at 1352. Since petitioner has not received compensation from the
Program, he may be awarded “compensation to cover [his] reasonable attorneys’
fees and other costs incurred in any proceeding on such petition if the special
master or court determines that the petition was brought in good faith and there
was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). As the Federal
Circuit has stated, “good faith” and “reasonable basis” are two separate elements
that must be met for a petitioner to be eligible for attorneys’ fees and costs.
Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).

      “Good faith” is a subjective standard. Id.; Hamrick v. Sec’y of Health &
Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov.
19, 2007). A petitioner acts in “good faith” if he or she honestly believes that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary has
not challenged petitioner’s good faith here, and there is little doubt that petitioner
brought the claim with an honest belief that a vaccine injury occurred.

       In contrast to good faith, reasonable basis is purely an objective evaluation
of the weight of the evidence. Simmons, 875 F.3d at 636. Because evidence is
“objective,” the Federal Circuit’s description is consistent with viewing the
reasonable basis standard as creating a test that petitioners meet by submitting
evidence. See Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013
WL 6234660 at *12–13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that
reasonable basis is met with evidence), mot. for rev. denied, 116 Fed. Cl. 276
(2014).

      Here, the reports and testimony from the expert petitioner has retained, Dr.
Small, satisfy the reasonable basis standard. Over the course of three years, Dr.
                                              3
Small wrote a total of three expert reports. See Exhibits 7, 9, 16. In his reports,
Dr. Small proposed a causation theory linking the flu vaccine with petitioner’s
injury and responded to the Secretary’s expert’s, Dr. Messé, criticisms. See
Exhibit 16. In addition, Dr. Small gave extensive testimony on the hearing date.
See Tr. 40:17–104:25, 106:12–166:21, 280:15–285:19.

   2. Appropriateness of an Interim Award

      Interim awards should not be awarded as a matter of right. Avera, 515 F.3d
at 1352 (Fed. Cir. 2008). Instead, petitioners must demonstrate “undue hardship.”
Id. The Federal Circuit noted that interim fees “are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” Id.
The Circuit has also considered whether petitioners faced “only a short delay in the
award” before a motion for final fees could be entertained. Id.

       The Federal Circuit has not attempted to specifically define what constitutes
“undue hardship” or a “protracted proceeding.” In the undersigned’s practice,
interim fees may be appropriate when the amount of attorneys’ fees exceeds
$30,000 and the case has been pending for more than 18 months. Petitioner clears
both hurdles.

   3. Reasonableness of the Requested Amount

       Under the Vaccine Act, a special master may award reasonable attorneys’
fees and costs. 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are
calculated by multiplying a reasonable hourly rate by a reasonable number of hours
expended on litigation, the lodestar approach. Avera, 515 F.3d at 1347–48
(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton ex rel. v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In light of the
Secretary’s lack of objection, the undersigned has reviewed the fee application for
its reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl.
238 (2018).

      A.     Reasonable Hourly Rate

       Reasonable hourly rates are determined by looking at the “prevailing market
rate” in the relevant community. See Blum, 465 U.S. at 895. The “prevailing
market rate” is akin to the rate “in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. A
                                             4
petitioner’s counsel in the Vaccine Program is paid the forum rate unless the bulk
of the work is performed in a locale other than the forum (District of Columbia)
and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at
1349. If these two requirements are met, the Davis County exception applies, and
petitioner’s counsel is paid according to the local rate to avoid a “windfall.” Id.;
see Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v.
United States Envtl. Prot. Agency, 169 F.3d 755, 757–60 (D.C. Cir. 1999).

       For cases in which forum rates apply, McCulloch provides a framework for
consideration of appropriate ranges for attorneys’ fees based upon the experience
of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 5634323, *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly
Rate Fee Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.2

       Petitioner has requested that his attorney and the paralegal who worked on
his case be awarded forum rates consistent with the rates awarded previously by
the Court and the analysis and findings in McCulloch. Pet’r’s Mot. IAFC at 4–5.
The Secretary does not dispute that petitioner’s counsel is entitled to forum rates.

      Petitioner requests that his attorney and the paralegal be compensated at the
following hourly rates:

       Attorney Jeffrey A. Golvash
             2014 – $300
             2015 – $300
             2016 – $300
             2017 – $300
             2018 – $300
             2019 – $350

       Paralegal
             2015 – $130
             2016 – $130

       2
         The 2015–2016, 2017, 2018, and 2019 Fee Schedules can be accessed at: http://www.
cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from
the decision in McCulloch, 2015 WL 5634323.
                                                  5
              2017 – $130
              2019 – $130

      The Court has previously held that Mr. Golvash’s and his paralegal’s rates
for 2014–2018 are reasonable. See, e.g., Homick v. Sec’y of Health & Human
Servs., No. 15-1529V, 2018 WL 3991376, at *13 (Fed. Cl. Spec. Mstr. Jun. 26,
2018); Koebler v. Sec’y of Health & Human Servs., 2018 WL 5276580, at *1 (Fed.
Cl. Spec. Mstr. Sept. 7, 2018). Therefore, the undersigned finds these rates to be
reasonable.

       The undersigned also finds Mr. Golvash’s and his paralegal’s rates for 2019
reasonable. In 2019, Mr. Golvash had 19 years of experience in practice and his
$350 hourly rate therefore falls within the rates approved for attorneys with 11–19
years of experience.3 Additionally, his paralegal’s rate remained unchanged and is
thus reasonable.

       B.     Reasonable Number of Hours

      The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton, 3 F.3d at 1521. The Secretary did not challenge any of the requested hours
as unreasonable.

       Mr. Golvash’s time entries provide ample detail to assess reasonableness.
Although most tasks are appropriate for an attorney, Mr. Golvash has billed time
for clerical work. Billing at any rate for clerical and other administrative work is
not permitted in the Vaccine Program. Rochester v. United States, 18 Cl. Ct. 379,
387 (1989) (noting that tasks that “were primarily of a secretarial and clerical
nature . . . should be considered as normal overhead office costs included with the
attorneys’ fees rates.”). Clerical and administrative work includes tasks such as
setting up meetings, reviewing invoices, and filing documents, “for which neither
an attorney nor a paralegal should charge.” Hoskins v. Sec’y of Health & Human
Servs., No. 15-071V, 2017 WL 3379270, at *3, 6–7 (Fed. Cl. Spec. Mstr. July 12,
2017); see also Floyd v. Sec’y of Health & Human Servs., No. 13-556V, 2017 WL
1344623, at *13–14 (Fed. Cl. Spec. Mstr. Mar. 2, 2017) (“[S]ome tasks performed


       3
        The approved rates for that bracket are $324–$405. See http://www.cofc.uscourts.gov/
node/2914.
                                                 6
by paralegals were clerical/secretarial in nature. Examples include scheduling
status conferences, organizing exhibits, preparing compact discs, revising a short
motion after an attorney’s review, and filing documents through the CM/ECF
system.”); Silver v. Sec’y of Health & Human Servs., No. 16-1019V, 2018 U.S.
Claims LEXIS 1058, at *15 (Fed. Cl. Spec. Mstr. July 31, 2018) (noting that
“‘receiv[ing], review[ing,] and process[ing]’ records and court orders, and noting
deadlines, are all clerical tasks.”).

       Mr. Golvash consistently billed time for reviewing routine orders, namely
notices of filing, notices of appearance, and brief status orders. He also billed for
preparing notices of filing, scanning and numbering exhibits, organizing exhibits in
folders, and preparing exhibit lists. Therefore, the hours Mr. Golvash charged for
clerical work will not be compensated, resulting in a reduction of $3,000.00.

       The invoices also reveal that Mr. Golvash billed a total of 52.50 hours for
reviewing the file and records and preparing petitioner’s 12-page prehearing brief.
“Counsel should not include in their fee requests hours that are “excessive,
redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). The hours Mr. Golvash charged to prepare
such a short brief are excessive and a 20 percent reduction is therefore warranted,
resulting in a decrease of $2,756.00.

       Accordingly, taking into account the fee reductions described above,
petitioner is awarded attorneys’ fees in the amount of $57,435.00.

      C.     Costs

       Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requested $12,248.19 in
attorneys’ costs, consisting of acquiring medical records, ordering court transcripts,
paying the court filing fee, postage, and acquiring the services for one expert.
Pet’r’s Mot. IAFC, Exhibit A at 10–11. For the non-expert-related costs, the
undersigned finds that petitioner has provided adequate documentation for these
costs and will award them in full.

      For the expert-related costs, petitioner has requested compensation for the
expert fees of Dr. Small. Reasonable expert fees are also determined using the
lodestar method in which a reasonable hourly rate is multiplied by a reasonable
                                             7
number of hours. See Chevalier v. Sec’y of Health & Human Servs., No. 15-
001V, 2017 WL 490426, at *3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017). Dr. Small
billed 6.5 hours of work at a rate of $500 per hour for the preparation of expert
reports. Pet’r’s Mot. IAFC, Exhibit A at 18, 22, 24. A reasonable hourly rate for
an expert depends, in part, on the quality of the expert’s work. Sabella v. Sec’y of
Dep't of Health & Human Servs., 86 Fed. Cl. 201, 218-25 (2009). Here, in his first
expert report, which was only three pages long, Dr. Small gave a summary of
petitioner’s medical history and generally linked the flu vaccine to petitioner’s
injury, without providing a causation theory or supporting medical literature. In
his second report, which was two pages long, Dr. Small responded to Dr. Messé’s
report but failed to propose a causation theory linking petitioner’s injury to the flu
vaccine. It was not until his third report, which was five pages long, that Dr. Small
finally clarified vaccine causation and the basis for his causation opinion. In light
of his performance, Dr. Small’s hourly rate is reduced to $300. The reduction in
hourly rate is also based, in part, on the poor invoices Dr. Small created, which
lack detail by not listing any specific activities done in preparing his expert reports.

       Dr. Small also billed a flat rate of $5,000 for his full-day appearance at the
entitlement hearing on April 3, 2019. Id. at 33. Special masters do not typically
accept flat-rate charges. The undersigned is aware that the hearing lasted nearly
eight hours and that, before the hearing, Mr. Golvash spent time with Dr. Small to
prepare. See Pet’r’s Mot. IAFC, Exhibit A at 9. Consequently, a reasonable rate
for Dr. Small’s work on April 3, 2019, is $3,000.00, an amount that is consistent
with the reduction to his hourly rate.

      In sum, petitioner is awarded attorneys’ costs in the amount of $8,948.19.

                                    *      *       *

      Accordingly, petitioner is awarded:

      A lump sum of $66,383.19 in the form of a check made payable to
      petitioner and petitioner’s attorney, Jeffrey A. Golvash.

        This amount represents reimbursement of interim attorneys’ fees and other
litigation costs available under 42 U.S.C. § 300aa-15(e). In the absence of a




                                               8
motion for review filed pursuant to RCFC Appendix B, the clerk of the court is
directed to enter judgment herewith.4

       IT IS SO ORDERED.

                                                            s/Christian J. Moran
                                                            Christian J. Moran
                                                            Special Master




       4
          Entry of judgment can be expedited by each party’s filing of a notice renouncing the
right to seek review. Vaccine Rule 11(a).
                                                    9
