    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                        No. 16-642V
                                  Filed: February 27, 2019

* * * * * * * * * * * * * *
KELLIE DOVRE,              *                         UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                         Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Scott Rooney, Esq., Nemes, Rooney P.C., Farmington Hills, MI, for Petitioner.
Voris Johnson, Esq., United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

        On May 31, 2016, Kellie Dovre (“Ms. Dovre” or “Petitioner”) filed a petition pursuant to
the National Vaccine Injury Compensation Program.2 Petitioner alleges that she developed severe
tinnitus, profound hearing loss, and vertigo as a result of receiving an influenza vaccination on
or about November 1, 2013. Stipulation, filed November 19, 2018, 2018, at ¶¶ 1-4. On November
19, 2018, the parties filed a joint stipulation awarding petitioner compensation, which the
undersigned adopted as her Decision awarding damages on the same day. ECF No. 66.


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 Because this unpublished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, 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 November 27, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF
No. 67 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$19,560.75 (representing $18,288.00 in attorneys’ fees and $1,272.75 in costs). Fees App at 2.
Respondent responded to the motion on November 27, 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. 68. Petitioner did not file a reply thereafter, but filed
supplemental information concerning attorneys’ costs requested by the Court on February 14,
2019. ECF No. 73.

        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 her attorney, Mr. Scott Rooney, be compensated at a rate of $350.00
per hour for all work performed. Fees App. at 2. Although $350.00 per hour is a reasonable rate
for Mr. Rooney’s work in 2018, it exceeds what he has previously been awarded for work from
2014-2017. See Thomas v. Sec’y of Health & Human Servs., No. 14-966V, 2018 WL 5725184, at
*2 (Fed. Cl. Spec. Mstr. Oct. 5, 2018) (holding that $300.00 per hour is a reasonable rate for Mr.
Rooney’s work before 2018 and declining to retroactively raise his past rates); Pusateri v. Sec’y
of Health & Human Servs., No. 16-467V, 2019 WL 460158, at *1 (Fed. Cl. Spec. Mstr. Jan 9,
2019) (following the ruling in Thomas and noting that future fees applications from Mr. Rooney
should submit billing logs that reflect an hourly rate of $300.00 per hour for work prior to 2018).

        The undersigned agrees with the rulings in Thomas and Pusateri and will compensate Mr.
Rooney at $300.00 per hour for all work performed prior to 2018. Because the billing records
submitted indicate that Mr. Rooney performed 40.1 hours of work on this matter from 2014-2017,
this results in a reduction of $2,005.00.

       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,
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 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).
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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 (60.0) appear to be reasonable. The undersigned has
reviewed the submitted documentation and does not find any entries to be objectionable, and
Respondent has not pointed to any particular entries as objectionable either. Accordingly, based
on the rates determined, Petitioner shall be awarded a total of $16,283.00 in attorneys’ fees.

        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 $1,272.75 in costs. Fees App. at 16. This amount includes obtaining medical records, making
copies, postage, and the Court’s filing fee. Petitioner has provided adequate documentation for these
costs. However, of the amount requested, $177.50 is for “Fax/Scan.” Id. at 14-16. Operating a fax
machine is a cost better categorized as an overhead expense inherent to operating a law firm, and thus it
is not compensable. Dashty v. Sec’y of Health & Human Servs., No. 15-966V, 2018 WL 6990680, at *5
(Fed. Cl. Spec. Mstr. Nov. 21, 2018); Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 2017
WL 2480936, at *5 n.5 (Fed. Cl. Spec. Mstr. May 11, 2017). Accordingly, Petitioner is awarded final
attorneys’ costs of $1,095.25.

III.    Conclusion

        Based on the foregoing, the undersigned awards the total of $17,378.25, representing
$16,283.00 in attorneys’ fees, and $1,095.25 in costs, in the form of a check made payable jointly
to Petitioner and Petitioner’s counsel, Scott Rooney, 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.4

        IT IS SO ORDERED.


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).
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s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master




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