    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                           No. 14-969V
                                       Filed: June 15, 2017

* * * * * * * * * * * * * * * *                               Special Master Sanders
ROGER NOBLETT,                *
                              *                               Attorneys’ Fees and Costs; Adjusted
          Petitioner,         *                               Hourly Rates; Fees for Travel.
                              *
v.                            *
                              *
SECRETARY OF HEALTH           *
AND HUMAN SERVICES,           *
                              *
          Respondent.         *
* * * * * * * * * * * * * * * *

Amber D. Wilson, Maglio Christopher & Toale, PA, Washington, DC, for Petitioner.
Lara A. Englund, United States Department of Justice, Washington, DC, for Respondent.

                     DECISION ON ATTORNEYS’ FEES AND COSTS1

        On October 9, 2014, Roger Noblett (“Petitioner”) petitioned for compensation under the
National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).2 Petitioner
alleged that the administration of an influenza (“flu”) vaccine on October 16, 2013 caused him to
suffer from Guillain-Barre Syndrome (“GBS”). Petition, filed Oct. 9, 2014. On October 19,


1
 This decision shall be posted 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). In accordance with Vaccine
Rule 18(b), a party has 14 days to identify and move to delete medical or other information that
satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
  The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.

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2016, Special Master Hamilton-Fieldman issued a decision pursuant to the parties’ joint
stipulation. Decision, ECF No. 46.

        On April 11, 2017, Petitioner filed an application for attorneys’ fees and costs. Petitioner
requested attorneys’ fees in the amount of $38,647.20. See Pet’r’s Mot. Att’ys’ Fees and Costs
at 1, ECF No. 53. Petitioner requested attorneys’ costs in the amount of $3,255.14, and also
requested costs personally incurred in the course of this litigation in the amount of $111.96. Id.
at 1-2. Respondent indicated that “[t]o the extent the Special Master is treating [P]etitioner’s
request for attorneys’ fees and costs as a motion that requires a response from [R]espondent . . .
Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Resp’t’s Resp. at 2, filed Apr. 17, 2017. Respondent recommended that the
undersigned exercise her discretion and determine a reasonable award for attorneys’ fees and
costs. Id. at 3. Petitioner filed a reply on April 24, 2017 claiming that Respondent’s position
burdened the Court and prejudiced Petitioner. Pet’r’s Reply at 2. Without specific objections
from Respondent, Petitioner argued, the Court determines fee applications without allowing
petitioners the opportunity to respond to any “issues or misperceptions.” Id. Petitioner then
argued that his requested rates are reasonable and that he met his burden establishing the
reasonableness of his request. Id. at 3-5.

        The matter is now ripe for consideration.

   I.      Reasonable Attorneys’ Fees and Costs

        The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348
(Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . .
by ‘multiplying the numbers 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. Id. at 1348.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also
Hines v. Sec’y of Health & Human Servs., 22 Cl Ct. 750, 753 (1991) (“[T]he reviewing court
must grant the special master wide latitude in determining the reasonableness of both attorneys’
fees and costs.”). Applications for attorneys’ fees must include contemporaneous and specific
billing records that indicate the work performed and the number of hours spent on said work.
See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008).

        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. The petitioner bears the burden of providing adequate
evidence to prove that the requested hourly rate is reasonable. Id.



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         In Avera, the Federal Circuit determined that the forum of the Vaccine Act is
Washington, D.C. 515 F.3d at 1348. The Federal Circuit also decided that the forum rate for
attorneys’ fees should generally apply in Program cases. Id. However, it created an exception
pursuant to Davis County: where most of an attorney’s work is performed outside of the forum
and there is a “very significant difference” between the forum rate and the attorney’s lower local
rate, a court should calculate fees under the local rate. Id. at 1349. A court must first determine
the forum rate, then determine the local rate, and finally determine whether a “very significant
difference” exists between them. Davis Cty., 169 F.3d at 758.

           a. Hourly Rates

       The majority of counsel’s work in this case was performed in the Washington, DC office
of Maglio, Christopher, & Toale (“MCT”). Therefore, forum rate ranges will apply to the
attorneys’ rates.

       In McCulloch, Special Master Gowen determined the reasonable forum rate ranges for
attorneys with varying years of experience. McCulloch v. Sec’y of Health & Human Servs., No.
09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons.
denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). Pursuant to McCulloch, a
forum attorney with more than 20 years of experience may be awarded $350 to $425 per hour.
Id. An attorney with less than four years of experience, on the other hand, has a reasonable
hourly rate between $150 and $225. Id.

        In the instant case, attorney Amber Wilson requests hourly rates of $295 for work
performed from 2014 to 2015; $301 for 2016; and $308 for 2017. Pet’r’s Ex. 23, ECF No. 53-1.
The undersigned finds it necessary to adjust these rates. In considering Ms. Wilson’s skill,
experience, quality of work, and reputation, the undersigned finds that the appropriate hourly rate
for Ms. Wilson’s work performed in 2014-15 is $225 and in 2016 is $275. The reduced rates are
consistent with past decisions from other special masters. See McCosh v. Sec’y of Health &
Human Servs., No. 14-1089V, 2016 WL 8376852 (Fed. Cl. Spec. Mstr. Nov. 7, 2016); Kaufman
v. Sec’y of Health & Human Servs., No. 15-1045V, 2016 WL 8347656 (Fed. Cl. Spec. Mstr.
Nov. 7, 2016); Solomon v. Sec’y of Health & Human Servs., No. 14-0748V, 2016 WL 8257673
(Fed. Cl. Spec. Mstr. Oct. 27, 2016). In 2017, Ms. Wilson had 5 years of experience in practice.
Thus, she would fall in the $230 to $307 McCulloch range, as reflected in the 2017 Office of
Special Masters’ Attorneys’ Forum Hourly Rate Fee Schedule.3 Ms. Wilson’s requested hourly
rate of $308 is outside the acceptable range. The undersigned finds that $290 is a reasonable
hourly rate for 2017, based on her experience and background. Therefore, Ms. Wilson’s total fee
award is reduced by $6,243.20.



3
 The 2017 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
The hourly rates contained in the 2017 Fee Schedule are updated from the decision 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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        The undersigned also finds that it is necessary to adjust the 2017 rate for attorney Cecelia
Stultz. Ms. Stultz had been practicing for four years in 2017. See Cecelia Hagan Stultz, Avvo,
http://www.avvo.com/attorneys/34236-fl-cecelia-stultz-4559258.html (last visited June 15,
2017). Thus, she would fall within the $230 to $307 McCulloch range, as reflected in the 2017
OSM Attorneys’ Forum Hourly Rate Fee Schedule. Ms. Stultz’s requested rate of $250 for work
performed in 2017 is not appropriate. Pet’r’s Ex. 23 at 21. The undersigned finds that $230 is a
reasonable hourly rate for Ms. Stultz, which is at the lower end of the rates for attorneys with
four to seven years of experience in practice. Thus, Ms. Stultz’s total fee award is reduced by
$6.00.

            b. Hours Expended

       The second step in Avera is for the Court to make an upward or downward modification
based upon specific findings. 515 F.3d at 1348. In a review of MCT’s billing records, the
undersigned found Ms. Wilson requested her full hourly rate for traveling. Pet’r’s Ex. 23 at 7.
Following Gruber, the undersigned will grant a full hourly rate for travel where an attorney
provides documentation that she or he performed work while traveling. 91 Fed. Cl. at 791; see
also Amani v. Sec’y of Health & Human Servs., No. 14-150V, 2017 WL 772536, at *6 (Fed. Cl.
Spec. Mstr. Jan. 31, 2017).

        Here, Ms. Wilson requests $295 per hour for: 0.3 hours of travel on January 19, 2015; 0.5
hours of travel on January 20, 2015; 2 hours of travel on January 21, 2015; and 0.3 hours of
travel on January 23, 2015. Pet’r’s Ex. 23 at 7. Her billing entries for those dates state: “Travel
to BWI, park car, shuttle to airport, security check (split btn 4 cases);” “Pick up rental car and
travel from airport to hotel;” “Travel to/from client meeting;” and “Return travel from BWI to
include shuttle time to retrieve car (split btn 4 cases).” Id. The undersigned will award Ms.
Wilson an hourly rate of $150 for travel, which amounts to two-thirds of her reasonable rate of
$225. See also Collins v. Sec’y of Health and Human Servs., No. 15-661V, 2017 WL 1315687,
at *3 (Fed. Cl. Spec. Mstr. Mar. 15, 2017). This reduction reflects travel time wherein Ms.
Wilson was driving and therefore limited in her ability to engage in any other work or personal
activity. The total reduction for these hours is $449.50.

            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). Petitioner requests
$3,255.14 in MCT attorneys’ costs. The costs are associated with medical record retrieval, travel
to and from D.C., postage, and a filing fee. The undersigned finds them to be reasonable and
awards them in full.

   II.      Conclusion

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

         MCT Attorneys’ Fees Requested                                       $38,647.20


                                                 4
       (Reduction to Ms. Wilson’s Hourly Rate in 2014-15)                  -$5,600.00
       (Reduction to Ms. Wilson’s Hourly Rate in 2016)                     -$592.80
       (Reduction to Ms. Wilson’s Hourly Rate in 2017)                     -$50.40
       (Reduction to Ms. Stultz’s Hourly Rate in 2017)                     -$6.00
       (Reduction to Ms. Wilson’s Travel Fees)                             -$449.50
       MCT Attorneys’ Fees Awarded                                         $31,948.50

       MCT Attorneys’ Costs Awarded                                        $3,255.14

       Total MCT Attorneys’ Fees and Costs Awarded                         $35,203.64

       Streett Law Firm Fees and Costs Awarded                             $3,881.64

        The undersigned has reviewed Petitioner’s counsel’s detailed records of time and
expenses incurred in this case, and they are reasonable with the above reductions. In accordance
with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is
entitled to attorneys’ fees and costs. Accordingly, the undersigned hereby awards the
amount of $35,203.64,4 in the form of a check made payable jointly to Petitioner and
Petitioner’s counsel, Amber D. Wilson, of Maglio Christopher & Toale5; $3,881.64, in the
form of a check made payable jointly to Petitioner and Petitioner’s former counsel, Streett
Law Firm, P.A.6; and $111.96, in the form of a check made payable to Petitioner7 only. 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.8

       IT IS SO ORDERED.

                                             /s/Herbrina D. Sanders
                                             Herbrina D. Sanders
                                             Special Master
4
  This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for
legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or
collecting fees (including costs) that would be in addition to the amount awarded herein. See
generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
 The Clerk of Court is directed to forward the check for Petitioner and Petitioner’s counsel,
Maglio Christopher & Toale, to: 1605 Main Street, Suite 710, Sarasota, FL 34236.
6
 The Clerk of Court is directed to forward the check for Petitioner and Petitioner’s former
counsel, Streett Law Firm, P.A., to: 107 West Main Street, Russellville, AR 72801.
7
 The Clerk of Court is directed to forward the check for Petitioner, Roger Noblett, to: Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, FL 34236.
8
 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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