    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                      No. 16-1649V
                                   Filed: May 16, 2019

* * * * * * * * * * * * * *
DORIS HANDLER,             *                         UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                         Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Stephanie Schmitt, Esq., Middleton, WI, for Petitioner.
Julia Collison, Esq., United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

        On December 15, 2016, Doris Handler (“Ms. Handler or “Petitioner”) filed a petition
pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleges that she
suffers from Shoulder Injury Related to Vaccine Administration (“SIRVA”) and shingles as a
result of the influenza (“flu”) vaccination she received on September 22, 2015. Petition, ECF No.
1. On February 5, 2019, the parties filed a joint stipulation of dismissal, and on the same day the
undersigned issued an Order concluding proceedings pursuant to Vaccine Rule 21(a). ECF No.
44.

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 Because this unpublished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, 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.
        On February 6, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF
No. 45 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$17,609.27 (representing $16,968.60 in attorneys’ fees and $640.67 in costs). Fees App at 5.
Pursuant to General Order No. 9, Petitioner asserts that she has personally incurred costs of
$400.00. Id. Respondent responded to the motion on March 6, 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.” Resp’t’s Resp. at 2-3. ECF No. 51. Petitioner filed a reply on March
6, 2019, reiterating her belief that the request for fees and costs was reasonable. Reply at 1, ECF
No. 53.

        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
was not successful in pursuing her claim, the undersigned finds that both elements have been met.
First, the undersigned does not doubt that petitioner brought her claim in a good-faith belief that
her vaccination played a causal role in her injury. Additionally, the claim possessed sufficient
objective support to meet the second half of the reasonable basis test, and Respondent has not
challenged the reasonable basis of the claim. Accordingly, a final award of attorneys’ fees and
costs is proper.

        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


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        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
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 attorneys be compensated at the following rates: for Mr. Mark
Krueger, $363.00 per hour for work performed in 2016 and $376.00 per hour for work performed
in 2017; for Mr. Andrew Krueger, $200.00 per hour for all work performed; and for Ms. Stephanie
Schmitt, $200.00 per hour for all work performed. These rates are all consistent with what Krueger
& Hernandez attorneys have been awarded for their work in the Vaccine Program. See Horton v.
Sec’y of Health & Human Servs., No. 17-55V, 2018 WL 6253775, at *2 (Fed. Cl. Spec. Mstr. Oct.
23, 2018). Accordingly, no adjustment to the requested rates is necessary.

       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,
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 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S
chedule%202019.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).


                                                  3
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 billing entries and finds that a small overall reduction is
necessary. The issue is that the attorneys and paralegal who worked on this case appeared to view
0.2 hours as the minimum amount of time to complete any task. While it is understandable that
some e-mails and phone calls take longer than others, in the undersigned’s experience it is
extremely unlikely that all communication took a minimum of 12 minutes to complete.
Accordingly, the undersigned and other special masters have consistently reduced fee requests in
which counsel and staff billed in minimum increments greater than 0.1 hours. See Butler v. Sec’y
of Health & Human Servs., No. 16-1027V, 2019 WL 1716073, at *3 (Fed. Cl. Spec. Mstr. Mar.
20, 2019); Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *3
(Fed. Cl. Spec. Mstr. Jan. 31, 2019); Meadows v. Sec’y of Health & Human Servs., No. 16-861V,
2018 WL 6292565, at *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018).

        Accordingly, the undersigned will reduce the amount of attorneys’ fees by 5%. This results
in a reduction of $848.43. Petitioner is therefore awarded final attorneys’ fees of $16,120.17.

       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 $640.67 in costs. Fees App. at 5. This amount is comprised of acquiring medical records,
mailing costs, and making copies. These costs are typical of Vaccine Program litigation and petitioner
has supported them with adequate documentation. Accordingly, petitioner is entitled to the full amount
of costs sought, $640.67.

       d. Petitioner’s Costs



                                                  4
       Pursuant to General Order No. 9, Petitioner warrants that she has personally incurred costs in the
amount of $400.00 for the Court’s filing fee. This cost shall also be fully reimbursed.

III.      Conclusion

       In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:

       1) A lump sum in the amount of $16,760.84, representing reimbursement for Petitioner’s
          attorneys’ fees and costs, in the form of a check payable to Petitioner and Ms.
          Stephanie Schmitt, Esq.; and

       2) A lump sum in the amount of $400.00, representing reimbursement for Petitioner’s
          costs, in the form of a check payable to Petitioner.

        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.


                                                s/Mindy Michaels Roth
                                                Mindy Michaels Roth
                                                Special Master




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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