                                                                                            REISSUED FOR PUBLICATION
                                           SEP 25 2018
                ORIGINAT                                                                                    OSM
                                                                                                U.S. COURT OF FEDERAL CLAIMS

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                                           OFFICE OF SPECIAL MASTERS                                             FILED
,F :F rF rF rF :F *(   * :F rl€ :t   rrt   * {< rF >* r( * rk rF *                                             AUG 2   2   2018

PATRICIA MILLENDER,                                                   *
                                                                                                              U.S. COURT OF
as natural guardian and legal                                         *                                      FEDERAL CLAIMS

representative                                                        :|<
                                                                                No. 17-274Y
of J.R., a minor,                                                     *(
                                                                                Special Master Christian J. Moran
                                                                      *
                                   Petitioner,                        *
                                                                      {<
                                                                                Filed: August 22,2018
V
                                                                      *
                                                                      *         Attorneys' fees and costs, interim
SECRETARY OF HEALTH                                                   *(
                                                                                award, 15-week order
AND HUMAN SERVICES,                                                   *
                                                                      ,F



                                   Respondent.                        *
* *   {< {<   * * * *     :t< rF   * * * rF rF *< :t< * * *      rk



Patricia Millender, Houston, TX, pro se;
Nancy R. Meyers, Ward Black Law, Greensboro, NC, former counsel of record for
petitioner;
Voris E. Johnson, United States Dep't of Justice, Washington, DC, for respondent.

DECISION AW     ING ATTORIIEYS' FEES & COST ON AN INTERIM
       BASIS AND DENYING APPLICATION FOR STANDING'

       Patricia Millender's former attorney of record, Nancy Meyers, filed a motion
for an award of attorneys' fees and costs on an interim basis. For the reasons
explained below, a reasonable amount is $20,456.59 and Ms. Meyers is awarded
that sum.



        I 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. Pursuant to Vaccine Rule l8(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.
                                                                            1




                                                                                                            Fed Ex - 837583792124
                                Procedural Historv

       Represented by Ms. Meyers, Ms. Millender filed a petition under the
National Childhood Vaccine Injury Act,42 U.S.C. $ 300a-10 through34, alleging
that her son suffered from urticaria as a result of the vaccines he received on
October 26,2015. See Petition (filed Feb. 27 , 2017). In the subsequent months,
petitioner also filed numerous medical records, affidavits, and other supporting
documentation. The parties apparently agreed on the tentative terms of a
settlement and requested a 15-week order on December 1 8,2017 .

      Less than a month later, the respondent filed a status report requesting that
the 15-week order be withdrawn because the parties no longer had a meeting of the
minds with regards to the terms of the sefflement. Resp't's Status R.p., filed Jan.
 12,2018. Respondent also noted that he was under the impression that petitioner
was seeking new counsel. Following respondent's status report, the undersigned
scheduled a status conference for February 20,2018, to discuss Ms. Millender's
next steps, with Ms. Millender herself ordered to participate. Order, issued Jan.
 19,2018.

       Ms. Millender did not appear at the February 20,2018 status conference.
Petitioner's counsel, Ms. Meyers, stated during the conference that she had been
unable to reach Ms. Millender by certified mail or by phone at three different
numbers. See order, issued Feb. 21,2018. In the order following the status
conference, the undersigned set another status conference for March20,2018, and
again ordered Ms. Millender to attend. Ms. Meyers was again ordered to serve a
copy of the order on Ms. Millender.

       Ms. Millender did appear for the March 20,2018 status conference. See
order, issued March 22,2018. Also on the call were Ms. Meyers and Mr. John
Rice, J.R.'s father. During the call, Ms. Millender stated that she was no longer
interested in having Ms. Meyers's representation. The undersigned advised Ms.
Millender that she could either proceed representing herself or retain another
attorney to represent her. Petitioner was ordered to file a status report on her next
steps by April 20,2018.

      Ms. Millender has not been heard from since the March 20,2018 status
conference.



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       On March 22,2018, while Ms. Meyers still was counsel of record, Ms.
Millender filed a motion for an award of fees on an interim basis, covering the
period of Ms. Meyers' representation. In his response, the respondent has stated
that he defers to the undersigned to determine whether petitioner has met the legal
standard for an interim fees and costs award as well as the statutory requirements
of any attorneys' fees and costs award under 42 U.S.C. $ 300aa-15(e)(1XA)-(B).
Resp't's Resp., filed Mar.28,2018, at 2. Respondent further recommended that
the undersigned exercise his discretion in determining the reasonable amount of
any award. Id. at 3.

      The day after filing the motion for interim fees, Ms. Meyers moved to
withdraw as Ms. Millender's attorney. No objections were made by either Ms.
Millender or the Secretary. The withdrawal motion was granted on April 19, 2018.

       On May 25,2018, Ms. Meyers applied for standing in this case for the
purpose of amending her fees motion to reflect a downward change in her hourly
billing rate for 2016 and2017. Ms. Meyers' motion followed two recent decisions
by the Chief Special Master setting Ms. Meyers' 2016 and 2017 rates at $350 per
hour, $25 less per hour than Ms. Meyers originally requested.

       The undersigned is aware of recent decisions concerning Ms. Meyers'
hourly rate and Ms. Meyers need not be granted standing for the purpose of the
undersigned's evaluation of the pending fees motion. Thus, Ms. Meyers'
application for standing is DENIED. If Ms. Meyers believes that her interests
must be represented on other grounds in this case going forward, she may reapply
for standing.

                                       Analvsis

       Broadly speaking, resolving the pending motion for an award of attomeys'
fees and costs on an interim basis requires consideration of three issues. The first
is whether the petitioner is eligible for attorneys' fees and costs. If the petitioner is
eligible, then the second issue is whether the petitioner should receive any
attorneys' fees and costs at this time. The third question is, assuming that some
award is appropriale, what constitutes a reasonable amount in this case.




                                            J
I.    Whether the Petitioner's Case Satisfies the Requirements for an Award
      of Attorneys' Fees and Costs

       To be eligible for any award of attomeys' fees and costs, petitioner must
satisfu the standards for good faith and reasonable basis. See 42 U.S.C. $ 300aa-
15(e) (2006). These are two separate elements. 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-
544Y,2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30,2007). The
undersigned has 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. Sec'y of Health & Human Servs., No. 07-452Y,2013
WL 6234660 at * 12-13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that
reasonable basis is met with evidence),        for rev. deni    116 Fed. CL.276
(20t4).

       The Federal Circuit and judges of the Court of Federal Claims have
provided some guidance as to what reasonable basis is not. A petition based
purely on "unsupported speculation," even speculation by a medical expert, is not
sufficient to find a reasonable basis. P erreira v. Sec'y of     't of Health & Human
Servs. 33 F.3d 1375, 1377 (Fed. Cir. 1994) ("Congress must not have intended
that every claimant, whether being compensated or not under the Vaccine Act,
collect attorney fees and costs by merely having an expert state an unsupported
opinion that the vaccine was the cause in-fact of the injury"). As another example,
when "the medical and other written records contradict the claims brought forth in
the petitiorr," d special master is not arbitrary in concluding that reasonable basis
for the petition did not exist. Murphy v. Sec'), of Dep't of Health & Human Servs.,
30 Fed. Cl. 60, 62 (1993), aff d without              48 F.3d 1236 (Fed. Cir. 1995)
(table).

                                          4
       The evidence presented in this case supports a finding of reasonable basis.
The medical records show that J.R. developed urticaria in the days following his
four-year vaccinations. Exhibit2 at 1 1. This same timeline was established in
multiple medical records where J.R.'s mother brought J.R. back for treatment. Id.
at 8; exhibit 4 at342-47,406-09. In addition, one of J.R.'s treating doctors, Dr.
Javier Chinen, stated that he had reviewed J.R.'s medical records and had
concluded that J.R.'s urticaria did in fact "appear to be related to immunizations."
Exhibit 4 at 409. Thus, petitioner's claims in the petition are supported by the
medical records and the statement by J.R.'s treating physician indicates that the
claim of vaccine-causation is more than mere "unsupported speculation."

       The tentative settlement also provides some ancillary support for the finding
of reasonable basis. The parties' progress that culminated in the request for and
issuance of a 15-week order distinguishes this case from Woods v. Sec'y of Health
& Human Servs 105 Fed. Cl. 148, 152-53 (2012). There, the Court stated that
"settlement negotiations, standing alone, cannot equate to a finding that there was a
reasonable basis for Petitioners' claim." Unlike Woods, an attorney from the
Department of Justice had indicated that he was willing to seek formal approval
from officials at the Department of Health and Human Services and the
Department of Justice to pay Ms. Millender money. See Resp't's Status Rep., filed
Dec. 1 5,2017, at l.

      Accordingly, having weighed the evidence in the record, including Dr.
Chinen's record, the undersigned finds that petitioner had good faith and a
reasonable basis for her claim. Accordingly, petitioner is eligible for
compensation for her fees and costs in bringing the claim. See 42
U.S.C. $ 300aa-15(e).

II.   Whether the Petitioner Should be Awarded Attorneys' Fees and Costs
      on an Interim Basis as a Matter of Discretion

       After a finding of good faith and reasonable basis, the special master may
exercise discretion in awarding attorneys' fees and costs on an interim basis. Rehn
v. Sec'y of Health & Human SgryE , 126 Fed. Cl. 8 6,97 (2016) (citing Cloer v.
Sec'y of Health & Human Servs. , 675 F.3d 1358, 1362 (Fed. Cir.2012) (en banc),
affld, 133 S.Ct. 1886 (2012)); Friedman v. Sec'y of Health & Human Servs., 94
Fed. Cl. 323,334 (2010) (ruling that special master acted within discretion in

                                          5
denying an award of attorneys' fees and costs on an interim basis). The Federal
Circuit identified some factors for a special master to consider before awarding
attorneys' fees and costs on an interim basis. These include: "protracted
proceedings," "costly experts ," and "undue hardship." Avera, 515 F.3d at 1352
This list is illustrative, not exhaustive. The Court of Federal Claims has
interpreted this language to mean that "some special showing is necessary to
warrant interim fees." McKellar v. Sec'y o f Health & Human Servs.. 101 Fed. Cl.
297   ,300 (201 1 ).

       The undersigned finds the circumstances surrounding Ms. Meyers'
withdrawal from this case and Ms. Millender's continued absence in these
proceedings to constitute a sufficient basis for an interim award. Denying Ms.
Meyers compensation at this time does nothing to further the objectives of the
Vaccine Program while having the negative consequence of creating an additional
disincentive for attorneys to represent vaccine claimants. That Ms. Millender and
the Secretary do not contest the award of interim fees also weighs in favor of a
finding that an interim award is appropriate.

[[I.    What is a Reasonable Amount of Attorneys' Fees and Costs

        The final issue is quantifying a reasonable amount for attorneys' fees and
costs

         A.     Attorneyq'Eegl

       As for what constitutes an appropriate fee award, the Federal Circuit has
approved the lodestar approach to determine reasonable attorneys' fees and costs
under the Vaccine Act. This is a two-step process. See Avera v. Sec'y of Health
& Human Servs 515 F.3d 1343,1348 (Fed. Cir. 2008). First, a court determines
an "initial estimate . . . 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)). Second, the court may make an upward or
downward departure from the initial calculation of the fee award based on specific
findings. See id. at 1348. Here, because the lodestar process yields a reasonable
result, no additional adjustments are required.




                                           6
             l.    Hourly Rates

       Forum rates are used in the lodestar formula, except when the rates in an
attorney's local area are significantly lower than forum rates. Avera, 515 F.3d at
1348-49. The forum in Vaccine Act cases will always be Washington, D.C.
because special masters operate as "extensionfs] of the United States Court of
Federal Claims." Id. at 1353. When deciding the reasonableness of requested
rates, special masters may consider an attorney's overall legal experience and
experience in the Vaccine Program, as well as the quality of the work performed.
See l\zfcCrrlloch rz Sec'w of Health & Human Servs No. 09-293Y ,2015,2015 WL
5634323, at * 17 (Fed. Cl. Spec. Mstr. Sept. 1,2015), mot. for recons. denied , 2015
WL 6181910 (Fed. Cl. Spec. Mstr. Sept.21,2015).

       Petitioner had one attorney work on this case, Ms. Meyers, from 2016 until
2018. Petitioner's motion for fees and costs requests 5375 per hour for Ms.
Meyers' work in 20 16,2017 , and 2018. However, as mentioned earlier, Ms.
Meyers' rates for 2016 and 2017 are more than the rates found reasonable by other
special masters, decisions that the undersigned finds to be persuasive here. See.
e.g., King v. Sec'y of Health & Human Servs., No.l5-0486V,2017 WL
2256674 (Fed. Cl. Spec. Mstr. Apr. 27 ,2017); Wiersema v. S ec'y of Health &
Human Servs., No.16-1430V,2017 WL 3807014 (Fed. Cl. Spec. Mstr. Aug.2,
2017). Accordingly, the fee award is adjusted to reflect an hourly rate of $350 for
2016 and2017. However, the undersigned finds the rate of $375 per hour for 2018
to be reasonable based on inflation adjustments to Ms. Meyers' prior years' hourly
rates. See also Blanco v. Sec'y of      th & Human Servs.. No. 16-ll42Y ,2018
                  *2
WL 3432894, at (Fed. Cl. Spec. Mstr. June 5, 2018) (finding $3ZS to be a
reasonable hourly rate for Ms. Meyers for 2018).

             2.    Number of Hours Billed

       Having established reasonable rates, the undersigned turns to the amount of
time Ms. Meyers billed on this matter in order to determine the total fee award.
Ms. Meyers' billing records reflect clerical and excessive billing entries. As
elucidated below, these findings indicate a reduction in the number of hours billed
is appropriate.

       Billing at any rate for clerical and other administrative work is not permitted
in the Vaccine Program because it is "considered as normal overhead office costs

                                          7
included in attorneys'fees ...." Rochesterv. United States, 18 Cl. Ct.379,387
(1989). Filing documents is a clerical task for which attorneys should not charge.
See Guerrero v Sec'y of Health & Human Servs., No. 12-689,2015 WL 3745354,
 at*6 (Fed. Cl. Spec. Mstr. l;4:ay 22,2015). Moreover, billing for scheduling and
calendaring deadlines is also not compensable because of its clerical nature. See
Kerridoe V. s ec ,w of Health & Human Serv q No. 15-0852V, 2017 WL 4020523,
at *3 (Fed. Cl. Spec. Mstr. July 28, 2017).

      Billing records reflecting excessive billing are also subject to reductions.
Repetitive billing for emails can be excessive when charging for sending and
receiving emails separately. See Grrerrero V. Sec'v of Health & Human Servs
 l24Fed. Cl. 153, 159 (2015) (ruling the special master was not arbitrary in
deducting time charged for sending and receiving emails separately), upp.
dismissed, No. 2016-1753 (Fed. Cir. Apr.22,2016).

      In petitioner's case, there are ten clerical entries. These ten entries in the
paralegal's billing reflect calendaring deadlines and filing documents. Fees &
Costs Summary & Attorney & Paralegal Time Entries at 14-25. Because the
Vaccine Program does not compensate for such clerical tasks, a reduction is
appropriate.

      Moreover, Ms. Meyers' records also reflect excessive billing for sending
and receiving emails separately. Id. at 4-10. There are over ten occasions where
counsel billed separately for sending and then for receiving emails. Id. The
undersigned finds this form of billing not reasonable and that a further reduction is
appropriate.

      To account for the excessive billing, the undersigned finds a five percent
reduction to be appropriate.

       B.      Costs

      In addition to attorneys' fees, Ms. Meyers seeks compensation for costs
expended. The total requested is $1,640.41. Revised Fees & Costs Summary. The
undersigned finds all of the costs reasonable.

                                     *      *     *

       Accordingly, petitioner is awarded:

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      The total of $20,456.59, in the form of a check made payable jointly to
      petitioner and Nancy R. Meyers, of Ward Black Law for attorneys' fees
      and costs.
        This amounts represents reimbursement of attorneys'fees and other
litigation costs available under 42 U.S.C. $ 300aa-15(e). In the absence of a
motion for review filed pursuant to RCFC Appendix B, the clerk of the court is
directed to enter judgment herewith.

      The clerk of the court shall provide a copy of this decision to Ms.
Millender's former attomey of record, Nancy Meyers.



                                       Christian J.
                                       Special Master




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