         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 16-71V
                                      Filed: April 25, 2018

    * * * * * * * * * * * * *                  *    *
    KORRINE HERLTH,                                 *      UNPUBLISHED
                                                    *
                 Petitioner,                        *
    v.                                              *      Decision on Interim Attorneys’ Fees and
                                                    *      Costs
    SECRETARY OF HEALTH                             *
    AND HUMAN SERVICES,                             *
                                                    *
             Respondent.                            *
    * * * * * * * * * * * * *                  *    *

Andrew D. Downing, Esq., Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Voris E. Johnson, Esq., U.S. Department of Justice, Washington, DC, for Respondent.

                DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS 1

Roth, Special Master:

       On January 13, 2016, Andrea Herlth, (“Ms. Herlth”) filed a petition on behalf of her
minor daughter, K.H., pursuant to the National Vaccine Injury Compensation Program. 2 K.H.
tuned eighteen years old on May 23, 2016, and on May 20, 2017, Korrine Herlth (“petitioner”)
was substituted as petitioner in this matter. ECF No. 32. Petitioner alleges that she suffered
various injuries as a result of receiving a Gardasil vaccination on December 3, 3013. Petition,
ECF No. 1.

       On March 29, 2018, petitioner filed a Motion for Interim Fees and Costs (“Motion for
Interim Fees”), requesting $50,160.50 in attorneys’ fees, and $22,268.68 in costs, for a total of

1
        Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the
E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). 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 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that
provision, I will delete such material from public access.
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).
$72,429.18. ECF No. 52. On April 3, 2018, respondent filed a response to petitioner’s Motion
for Interim Fees that contained no specific objection to the amount requested or hours worked,
but instead asked that the undersigned exercise her discretion in determining the proper amount
to be awarded. ECF No. 53.

                                   I. Applicable Legal Standards

         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). Moreover,
special masters have discretion to award interim fees while the litigation is ongoing if “the cost
of litigation has imposed an undue hardship” and there is “a good faith basis for the claim.”
Shaw v. Sec’y of Health & Humans Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010); see Avera v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). One instance in which
interim fees have been awarded is “where proceedings are protracted and costly experts must be
retained.” Avera, 515 F.3d at 1352.

        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, 515
F.3d at 1349. Under this approach, [t]he initial estimate of a reasonable attorney’s fee” 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.

        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.” Id. at 1348
(quoting Blum, 465 U.S. at 896 n.11). 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 attorneys’ 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 (Fed. Cir. 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 issued a fee schedule that updates the
McCulloch rates to account for inflation in subsequent years. 3

3
        This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.

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         Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. The application for fees and
costs must “sufficiently detail and explain the time billed so that a special master may determine
. . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be
reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No.
15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, 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).

        Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who
perform non-attorney-level work are compensated at a rate 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). 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). Finally, some tasks are never compensable. For instance, “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). And clerical and secretarial tasks should not be billed at all,
regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Non-
compensable clerical and secretarial tasks include making travel arrangements, reviewing and
paying invoices, setting up meetings, organizing files, scheduling conference calls, and
reviewing files for consistency. J.W., 2017 WL 877278, at *3; Barry v. Sec’y of Health &
Human Servs., No. 12-039V, 2016 WL 6835542, at *4 (Fed. Cl. Spec. Mstr. Oct. 25, 2016).

        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 v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 728-29 (2011) (affirming special master’s reduction of attorney and paralegal
hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Ultimately,
special masters have substantial discretion in awarding fees and costs, 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 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. See Broekelschen, 102 Fed. Cl. at 729.




                                                3
                                          II. Discussion

A.     Availability of Interim Fees

         The court in Avera held that interim fees may be awarded “in appropriate circumstances.”
515 F.3d at 1351. The court then listed some circumstances—cases involving “protracted”
proceedings and “costly experts”—in which it would be “particularly appropriate” to award
interim fees. Id. at 1352. But “the Federal Circuit in Avera . . . did not enunciate the universe of
litigation circumstances which would warrant an award of interim attorney’s fees,” Woods, 105
Fed. Cl. at 154, and “special masters [retain] broad discretion in determining whether to award”
them, Al-Uffi ex rel. R.B. v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669,
at *5 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). The inquiry is simply whether there is “a good faith
basis for the claim” and the denial of interim fees would “impose[] an undue hardship” in the
circumstances of the case. Shaw, 609 F.3d at 1375. In making this determination, “the special
master may consider any of the unique facts of a case.” Rehn v. Sec’y of Health & Human
Servs., 126 Fed. Cl. 86, 94 (2016).

        In the circumstances of this case, interim fees are warranted. First, this case has been
pending for two years, which ordinarily “suffice[s] to constitute the type of ‘circumstances’ to
warrant an interim fee award.” Woods, 105 Fed. Cl. at 154; see also, e.g., Thompson v. Sec’y of
Health & Human Servs., No. 12-475V, 2018 WL 1559799, at *1 (Fed. Cl. Spec. Mstr. Feb. 28,
2018) (“[I]nterim attorneys’ fees and costs are appropriate because waiting for the conclusion of
the case would place an undue hardship in petitioner”); Kottenstette v. Sec’y of Health & Human
Servs., No. 15-1016V, 2017 WL 5662780, at *3 (Fed. Cl. Spec. Mstr. Oct. 30, 2017) (finding
two-year proceeding constituted appropriate circumstances for interim fees). Second, petitioner
has paid substantial expert fees to date as well. Finally, respondent does not dispute that there is
“a good faith basis for [petitioner’s] claim.” Shaw, 609 F.3d at 1375; see Sharp-Rountree, 2015
WL 12600336, at *3 (explaining that “petitioners are entitled to a presumption of good faith
absent direct evidence of bad faith” and finding a good faith basis when respondent “declined to
challenge [it]”). In sum, the circumstances of this case warrant an award of interim fees and
costs.

B.     Reasonable Rates and Time Expended

         Petitioner requests $50,160.50 in attorneys’ fees. ECF No. 52-1. The requested hourly
rates, see id. at 66, are consistent with the rates previously found to be reasonable in cases
involving petitioner’s counsel. See, e.g., Carey v. Sec’y of Health & Human Servs., No. 16-
828V, 2018 WL 1559805, at *7 (Fed. Cl. Spec. Mstr. Feb. 26, 2018); Schultz v. Sec’y of Health
& Human Servs., No. 16-539V, 2018 WL 1835104, at *2 (Fed. Cl. Spec. Mstr. Feb. 16, 2018).
Moreover, the number of hours expended in this case by petitioner’s counsel appear to be
reasonable. Therefore, the undersigned awards the requested attorneys’ fees.




                                                 4
C.      Reasonable Costs

        Petitioner requests $22,268.68 in attorneys’ costs. ECF No. 52-1 at 66. The requested
costs consist of securing medical records, shipping costs, and expert fees. The undersigned finds
the requested costs to be reasonable.

                                    III. Total Award Summary

        Based on the foregoing, the undersigned GRANTS petitioner’s Motion for Interim
Attorneys’ Fees and Costs. Accordingly, the undersigned awards $72,429.18, 4 representing
$50,160.50 in attorneys’ fees, and $22,268.68 in costs, in the form of a check payable jointly
to petitioner and petitioner’s counsel, Andrew D. Downing, Esq. The clerk shall enter
judgment accordingly. 5

        IT IS SO ORDERED.
                                                        s/ Mindy Michaels Roth
                                                        Mindy Michaels Roth
                                                        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 Beck v. Sec’y of Health &
Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
       Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.

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