    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                          No. 17-978V
                                    Filed: January 27, 2020

* * * * * * * * * * * * *  *
GEORGE KENNEDY,            *                               UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                               Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Randall G. Knutson, Esq., Knutson & Casey Law Firm, Mankato, MN, for petitioner.
Christine M. Becer, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

        On July 20, 2017, George Kennedy (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 Petitioner alleged that he developed a shoulder injury
related to vaccine administration (“SIRVA”) as a result of receiving the influenza (“flu”) vaccine.
See Petition, ECF No. 1. On September 12, 2019, petitioner filed a motion to voluntarily dismiss
his petition, and on the same day the undersigned issued her Decision dismissing the petition for
insufficient proof. Decision, ECF No. 35.

       On September 23, 2019, petitioner filed an application for attorneys’ fees and costs. ECF
No. 39 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of

1
  The undersigned intends to post this Decision on the United States Court of Federal Claims' website. This
means the decision 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
$32,423.67 (representing $25,207.45 in attorneys’ fees and $7,216.22 in costs). Fees App. at 1.
Pursuant to General Order No. 9, petitioner warrants that he has not personally incurred any costs
in pursuit of this litigation. Id. Respondent responded to the motion on October 7, 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. 41. 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, although petitioner’s
claim was eventually dismissed, the undersigned finds that the petition was filed in good faith, and
that reasonable basis existed for its filing. Respondent also has not challenged the good faith or
reasonable basis of the claim. Accordingly, the undersigned finds that petitioner is entitled to an
award of final 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)


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(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)).

       Petitioner requests that his attorney, Mr. Randall Knutson, be compensated at $365.00 per
hour for all work performed. Fees App. at 1. This rate is consistent with what Mr. Knutson has
previously been awarded for his vaccine program work and is reasonable in this case as well. See
Maddox v. Sec'y of Health & Human Servs., No. 16-1504V, 2018 WL 6382043, at *2 (Fed. Cl.
Spec. Mstr. Oct. 5, 2018).

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.,
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 submitted billing entries and finds that a reduction due
to overbilling by Mr. Knutson on small tasks such as reviewing simple court orders and for
duplicate billing. Upon review, it does not appear that Mr. Knutson billed any task for less than
0.2 hours. Other special masters have noted that such billing practices can often result in
overbilling. See Golding v. Sec’y of Health & Human Servs., No. 16-1132V, 2019 WL 3753273,
at *3 (Fed. Cl. Spec. Mstr. Jul. 18, 2019).



                                                  3
         Additionally, Mr. Knutson and his paralegal occasionally billed for identical tasks. For
example, on October 30, 2017, each billed for reviewing a status report and then e-mailing a copy
of that report to petitioner). Fees App. Ex. 2 at 6, 21. Accordingly, the undersigned will reduce the
final award of fees by five percent to account for these entries, resulting in a reduction of
$1,260.38. Petitioner is therefore awarded final attorneys’ fees of $23,947.07.


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 $7,216.22 in costs, comprised of obtaining medical records, postage, the Court’s filing
fee, and work performed by petitioner’s expert, Dr. James Dahlgren. Fees App. Ex. 2 at 25-26.
These are typical costs in Vaccine Program cases and appear reasonable in the undersigned’s
experience. Petitioner is therefore awarded the full amount of attorneys’ costs sought.

                                                 III. Conclusion

       Based on all the above, the undersigned finds that petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:

    Attorneys’ Fees Requested                                             $25,207.45
    (Reduction to Fees)                                                  - ($1,260.38)
    Total Attorneys’ Fees Awarded                                         $23,947.07

    Attorneys’ Costs Requested                                             $7,216.22
    (Reduction of Costs)                                                       -
    Total Attorneys’ Costs Awarded                                         $7,216.22

    Total Attorneys’ Fees and Costs                                       $31,163.29

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Accordingly, the undersigned
awards the following:

      1) A lump sum in the amount of $31,163.29, representing reimbursement for petitioner’s
         attorneys’ fees and costs, in the form of a check payable to petitioner and his attorney,
         Mr. Randall Knutson.

       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.3


3
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

                                                     4
IT IS SO ORDERED.

                    s/Mindy Michaels Roth
                    Mindy Michaels Roth
                    Special Master




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