    In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: August 7, 2019

* * * * * * * * * * * * *  *
DEVON ENGSTROM and ERIC    *
ENGSTROM, on behalf of C.E.,
                           *
a minor child,             *                              No. 16-1152V
                           *                              Special Master Horner
         Petitioners,      *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                              Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Amber D. Wilson, Maglio Christopher and Toale, PA, Washington, DC, for Petitioners.
Camille M. Collett, United States Department of Justice, Washington, D.C., for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

         On September 16, 2016, Devon and Eric Engstrom (“petitioners”) filed a petition on behalf
of their minor child, C.E., for compensation pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). The petition alleged that C.E. suffered from
transverse myelitis as a result of his receipt of diphtheria-tetanus-acellular pertussis (“DTaP”),
inactivated poliovirus (“IPV”), haemophilus influence B (“Hib”), rotavirus, and pneumococcal
conjugate vaccines on or about September 28, 2015. On October 17, 2018, the parties filed a
stipulation for award, which the previously assigned special master adopted as her Decision


1
 I intend 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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
awarding damages on October 18, 2018. Decision, ECF No. 39.3

        On April 26, 2019, petitioners filed an application for attorneys’ fees and costs. ECF No.
53 (“Fees App.”). Petitioners request total attorneys’ fees and costs in the amount of $41,673.01
(representing $33,046.50 in fees and $8,626.51 in costs). Fees App. at 1. Pursuant to General Order
No. 9, petitioners warrant that they have not incurred any costs related to the prosecution of their
petition. Fees App. at 2. Respondent responded to the motion on May 3, 2019, indicating that he
“is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this
case” and requesting that the special master “exercise her discretion and determine a reasonable
award for attorneys’ fees and costs.” Resp. at 2–3 (ECF No. 54). Petitioners filed a reply on May
7, 2019, reiterating their belief that the requested amount for attorneys’ fees and costs is reasonable.
Reply, ECF No. 55, at 4.

       This 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, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. 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. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.

       Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209

3
  Following Special Master Millman’s retirement this case was reassigned to me on June 12, 2019 for
resolution of attorneys’ fees and costs.

                                                   2
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.

       a. Hourly Rates

        The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. 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). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.4

        Petitioners request the following rates of compensation for the work of their attorney, Ms.
Amber Wilson: $275.00 per hour for work performed in 2016, $290.00 per hour for work
performed in 2017, $308.00 per hour for work performed in 2018, and $323.00 per hour for work
performed in 2019. Fees App. Ex. 1 at 30. Petitioners also request rates ranging from $105.00 per
hour to $154.00 per hour for paralegal work, depending on the paralegal and the year the work was
performed. Id. These rates are consistent with what Ms. Wilson and Maglio firm paralegals have
previously been awarded for their work in the Vaccine Program. Accordingly, no reduction to the
hourly rates is necessary.

       b. Hours 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, 3 F.3d at 1521. 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


4
 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%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.


                                                   3
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.

        Upon review, I find the overall hours billed to be largely reasonable. The only reduction
necessary is to paralegal time for duplicative review of filings. Both paralegals and Ms. Wilson
routinely billed for every filing made by respondent and the Court. This led to at least twelve
minutes spent reviewing even mundane filings such as scheduling orders, which is excessive in
my experience. Additionally, paralegals billed time for review of minute entries, for which even
six minutes spent on review would be considered excessive. Accordingly, I shall reduce the final
award of attorneys’ fees by $671.30 to account for these duplicative entries. Petitioners are thus
awarded $32,375.20 in final fees.

       c. Attorneys’ 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). Petitioners request
a total of $8,626.51 in attorneys’ costs. This amount comprises the cost of obtaining medical
records, postage, the Court’s filing fee, travel to meet with petitioners, and work performed by
petitioners’ guardianship attorney. Fees App. Ex. 2 at 1-2. Petitioners have provided adequate
documentation supporting the requested costs and all appear reasonable in my experience.
Petitioners are thus entitled to the full amount of attorneys’ costs sought.

II.    Conclusion

       Based on all the above, I find that petitioners are entitled to the following award of
reasonable attorneys’ fees and costs:

 Attorneys’ Fees Requested                                           $33,046.50
 (Reduction to Fees)                                                 - ($671.30)
 Total Attorneys’ Fees Awarded                                       $32,375.20

 Attorneys’ Costs Requested                                          $8,626.51
 (Reduction of Costs)                                                    -
 Total Attorneys’ Costs Awarded                                      $8,626.51

 Total Attorneys’ Fees and Costs                                     $41,001.71

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioners’ request for fees and costs, other
than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the
amount of $41,001.71, representing reimbursement for petitioners’ attorneys’ fees and costs,
in the form of a check payable to petitioners and their attorney, Ms. Amber Wilson.




                                                 4
       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.5

        IT IS SO ORDERED.


                                                 s/Daniel T. Horner
                                                 Daniel T. Horner
                                                 Special Master




5
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

                                                     5
