    In the United States Court of Federal Claims
                          OFFICE OF SPECIAL MASTERS
*********************
JEFF and JAMIE NICHOLS, legal *
Representatives of a minor child,      *    No. 08-654V
CARSON NICHOLS,                        *    Special Master Christian J. Moran
                                       *
                   Petitioners,        *
                                       *
v.                                     *
                                       *    Filed: August 21, 2018
SECRETARY OF HEALTH                    *
AND HUMAN SERVICES,                    *    Attorneys’ fees and costs
                                       *
                   Respondent.         *
*********************
Marc L. Silverman, Bellevue, WA, for petitioners;
Colleen C. Hartley, U.S. Dep’t of Justice, Washington, DC, for respondent.

         DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

      Jeff and Jamie Nichols alleged that the diphtheria-tetanus-acellular pertussis
(DTaP) vaccine that their four-month old son, Carson Nichols, received on
September 11, 2006, caused his death nearly five days later as a result of an
anaphylactic reaction to the vaccination. The Nicholses, acting as Carson’s legal
representatives, brought this action seeking compensation for his death pursuant to
the National Childhood Vaccine Injury Compensation Program, codified at 42
U.S.C. § 300aa−10 through 34 (2012).

      Jeff and Jamie Nichols filed a petition, pro se, on behalf of their son, Carson,
on September 12, 2008. Pet. at 1. The Nicholses claimed that their son’s death
was caused by the DTaP vaccination he received on September 11, 2006. Id. Mr.
Marc L. Silverman became attorney of record on February 23, 2015. The final

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  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 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.
expert reports were submitted in late 2017 and on February 23, 2018, the
undersigned found that the Nicholses were not entitled to compensation under the
Vaccine Act. Decision, issued Feb. 23, 2018, 2018 WL 1514435.

       On April 25, 2018, petitioners filed a motion for attorneys’ fees and costs.
Upon review, the undersigned identified mathematical errors in petitioners’
application. Through informal communication with the parties, the petitioners
clarified their fees motion, requesting $26,075.00 in attorneys’ fees, $11,473.00 in
costs borne by petitioners’ attorney, and $13,075.00 in costs borne by petitioners.

       On April 30, 2018, the Secretary responded to petitioners’ motion, stating
that he “is satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case.” Resp’t’s Resp. at 2. Respondent deferred to the
undersigned to determine what would constitute a reasonable fee award in this
case. Id. at 3.

I.    Attorneys’ Fees

       Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e)(1). Here, the undersigned
finds the Nicholses acted in good faith and that the evidence submitted in this case
is sufficient to conclude that petitioners had a reasonable basis to bring their
petition. Thus, petitioners are eligible for an award of attorneys’ fees and costs.
The only question at bar is whether petitioners’ requested amount is reasonable.

       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.

      A. Hourly Rates




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       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 “extension[s] 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 McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 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).

      Petitioners had one attorney work on this case, Mr. Marc L. Silverman, from
2015 until 2018. The undersigned finds his requested hourly rate to be reasonable
under the applicable law.

      B. Number of Hours Billed

       Having established reasonable rates, the undersigned turns to the amount of
time counsel billed on this matter in order to determine the total fee award.
Petitioners’ counsel’s 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
included in attorneys’ fees . . . .” Rochester v. United States, 18 Cl. Ct. 379, 387
(1989). Filing documents is a clerical task for which attorneys should not charge.
See Guerrero v Secʼy of Health & Human Servs., No. 12-689, 2015 WL 3745354,
at *6 (Fed. Cl. Spec. Mstr. May 22, 2015).

       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 Guerrero v. Secʼy of Health & Human Servs., 124
Fed. Cl. 153, 159 (2015), app. dismissed, No. 2016-1753 (Fed. Cir. April 22, 2016)
(ruling the special master was not arbitrary in deducting time charged for sending
and receiving emails separately).

        In petitioners’ case, there are ten filing entries. The ten filing entries relate
to filing status reports, exhibits, supplemental expert reports, motions for extension
of time, or filing a reply to respondent’s motion. Itemization of Time at 1-4. Each

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of these filing entries bill .1 or .2 hours. Id. Because the Vaccine Program does
not compensate for such clerical tasks, a reduction is appropriate.

      Moreover, petitioners’ records also reflect excessive billing for sending and
receiving emails separately. Id. at 1-3. There are over ten occasions where
counsel billed separately for sending and then for receiving emails. Id. These
separately entered emails are between counsel and Dr. Rostad, petitioners, or
potential immunologists. Id. Such entries also bill for different amounts, ranging
from .1 hours to .5 hours. Id. The undersigned finds this form of billing not
reasonable and that a further reduction is appropriate.

      For the aforementioned reasons, the undersigned finds a $1,000 reduction
to result in a reasonable award.

II.    Costs

       In addition to attorneys’ fees, the Nicholses seek compensation for costs
expended. The total requested is $24,298.37, encompassing petitioners’ own costs,
petitioners’ counsel’s costs, and the remainder of Dr. Rostad’s outstanding invoice.
Mot. Attys’ Fees & Costs at 5. The Nicholses’ and their counsel’s costs include
experts’ fees, copying, shipping, and a filing fee. Id. The undersigned finds all of
the costs reasonable.

III.   Conclusion

       For the aforementioned reasons, petitioners’ attorneys’ fees are reduced by
$1,000 and petitioners’ request for costs is awarded in full. In accordance with the
Vaccine Act, 42 U.S.C. § 300aa-15(e), the undersigned has reviewed the billing
records and costs in this case and finds petitioners’ request for fees and costs, other
than those reductions delineated above, to be reasonable. Accordingly, petitioners
are awarded a total of $49,623.00 as follows:
          1. The total of $36,548.00, in the form of a check made payable
             jointly to petitioners and petitioners’ counsel, Marc Lawrence
             Silverman, for attorneys’ fees and costs; and
          2. The total of $13,075.00, in the form of a check made payable to
             petitioners, for petitioners’ costs.

       These amounts represent reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for

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review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith.
                                             s/Christian J. Moran
                                             Christian J. Moran
                                             Special Master




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