In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS

    ********************                      *
    JESSICA R. MARTIN,                        *
    On behalf of KM,                          *
                                              *       No. 16-318V
                       Petitioner,            *       Special Master Christian J. Moran
    v.                                        *
                                              *       Filed: October 31, 2018
    SECRETARY OF HEALTH AND                   *
    HUMAN SERVICES,                           *       Attorneys’ Fees and Costs,
                                              *       irreducible minimum.
                       Respondent.            *
                                              *
    ********************                      *

Dan W. Bolton, III, Bolton Law, PLLC, Cary, NC, for Petitioner;
Voris E. Johnson, Jr., United States Dep’t of Justice, Washington, DC, for
                                                     Respondent.

                   UNPUBLISHED DECISION AWARDING
             ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

       Jessica Martin brought a successful petition for compensation from the
National Childhood Vaccine Compensation Program. Ms. Martin has moved for
an award of her attorney’s fees and costs, which includes nearly $15,000 in
expenses associated with establishing and maintaining a guardianship for her
daughter, KM. While the Secretary challenges Ms. Martin’s statutory entitlement
to reimbursement of guardianship costs, he does not challenge any of her
attorney’s fees. Because the undersigned finds the attorney’s fees incurred by Ms.



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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.
Martin are reasonable, Ms. Martin is awarded her attorney’s fees as an interim
award. The question of costs will be addressed in the final fees decision.
                                   *       *       *

      Represented by Dan Bolton, Ms. Martin filed her petition, on behalf of KM,
for compensation on March 11, 2016. Ms. Martin claimed that the diphtheria-
tetanus-acellular pertussis (DTaP), inactivated poliovirus (IPV), Haemophilus
influenza type B (Hib), pneumococcal conjugate (PCV) and rotavirus vaccines,
which are contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), and which
KM received on August 23, 2013, caused KM to suffer transverse myelitis (“TM”).
The parties were able to informally resolve the case, entering a joint stipulation
that was then adopted. Decision, issued Oct. 23, 2017, 2017 WL 6522406.
Judgment entered on Oct. 31, 2017. As part of the judgment, Ms. Martin was
required to be established as KM’s guardian. Stipulation at ¶ 16. Under North
Carolina law, where KM and Ms. Martin reside, establishing and maintaining a
guardianship requires the purchase of guardianship bonds. See Pet’r’s Mot., filed
Mar. 8, 2018, appd’x 3 at 1-2 (citing N.C. GEN. STAT. §35A-1232). For KM, the
bond would cost over $1,000 a year.

       During the spring and summer of 2018, the parties navigated the issue of
Ms. Martin’s request that costs associated with maintaining a guardianship for KM
be compensated by the Program. Ms. Martin originally attempted to have the
merits judgment amended to include these costs under Section 15(a). See Pet’r’s
Mot., filed Feb 19, 2018. The Secretary opposed this request. See Resp’t’s Resp.,
filed Feb. 27, 2018, at 1-3. As a result, Ms. Martin included her request in her
motion for attorneys’ fees and costs, under Section 15(e). See Pet’r’s Fees Mot.,
filed Mar. 5, 2018, appd’x 3. However, the Secretary argues that Ms. Martin is not
eligible for the costs under Section 15(e) either. See Resp’t’s Resp., filed Feb. 27,
2018, at 3-7. The parties have submitted multiple briefs on the question of whether
Ms. Martin is eligible for these fees.

       While the parties strongly contest Ms. Martin’s eligibility for reimbursement
of guardianship costs, Ms. Martin’s motion for fees and costs was largely
uncontested. The Secretary stated that he is “satisfied that the statutory and other
legal requirements for an award of attorneys’ fees and costs are met” and
recommended that the undersigned exercise his discretion in determining “a
reasonable award for attorneys’ fees and costs.” Resp’t’s Resp., filed Mar. 19,
2018, at 2-3.
                                       *       *       *

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      I.     Eligibility and Appropriateness for an Interim Award

       Interim fee awards are available in Vaccine Act cases. Avera v. Sec'y of
Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). However, the
Federal Circuit has also noted that interim fees “are particularly appropriate in
cases where proceedings are protracted and costly experts must be retained.” Id.
This language has been applied in the Court of Federal Claims to mean that “some
special showing is necessary to warrant interim fees . . . .” McKellar v. Sec'y of
Health & Human Servs., 101 Fed. Cl. 297, 300 (2011). These are “including but
not limited to the delineated factors of protracted proceedings, costly experts, or
undue hardship.” Id. The court also considered whether petitioners faced “only a
short delay in the award” before a motion for final fees could be entertained. Id.

       There is some precedent in the Vaccine Program of awarding as “interim
fees” that portion of an award for final fees that is not in dispute. Referred to as
the “irreducible minimum,” special masters have awarded the undisputed portion
of petitioners’ final fees as interim fees when the circumstances called for such an
award. For instance, in Masias, the undersigned awarded the “irreducible
minimum” to the petitioner when the parties were likely to pursue multiple appeals
of the contested portion of the award. Masias v. Sec'y of Health & Human Servs.,
No. 99-697V, 2009 WL 899703, at *4 (Fed. Cl. Spec. Mstr. Mar. 12, 2009), order
corrected, 2013 WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30, 2013); see also Loving
v. Secʼy of Health & Human Servs., No. 02-469V, 2014 WL 10558839 (Fed. Cl.
Spec. Mstr. Sept. 10, 2014); Aull v. Sec'y of Health & Human Servs., No. 08-
347V, 2010 WL 3743899, at *1 (Fed. Cl. Spec. Mstr. Aug. 20, 2010), Stewart v.
Sec'y of Health & Human Servs., No. 06-287 V, 2010 WL 2342467, at *2 (Fed. Cl.
Spec. Mstr. May 17, 2010).
       As for the case at hand, Ms. Martin is entitled to an award of her reasonable
fees and costs because she received compensation from the program. See 42
U.S.C. § 300aa–15(e). Thus, the question is not whether she will receive
reimbursement of her fees and costs, but when.

       Based on the entirety of the circumstances, the undersigned finds that
without an interim award, Ms. Martin and her attorney will be faced with an undue
delay in receiving uncontested fees incurred upon Ms. Martin’s petition.

       As an initial matter, it is important to note that Ms. Martin has already
waited some time to receive reimbursement of her fees and costs. Ms. Martin
started incurring fees on this petition in July 2015, she brought the petition in


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March 2016, and judgment was entered almost exactly a year ago today. Until
now, no compensation for her costs has been awarded.
       More importantly, the position of the parties in this case indicates that absent
an interim award of an “irreducible minimum,” Ms. Martin is unlikely to receive
compensation of the undisputed amount for some time. The Secretary and the
petitioner firmly disagree about the eligibility of Ms. Martin to receive
compensation for a substantial portion of the guardianship costs. Based on the
time the parties have spent briefing the issue and the contents of those briefs, it
appears that the unsuccessful party may appeal any decision. Furthermore,
because the Federal Circuit has not addressed this very question and because the
question is, in part, one of law, the likelihood that the Federal Circuit may be asked
to resolve the question is augmented. For this reason, an award of the irreducible
minimum as an interim fee award appears reasonable.

      This decision on interim fees is not made at Ms. Martin’s explicit request.
The sua sponte nature of this decision is unusual but is, in the undersigned’s
opinion, appropriate. In coming to this decision, the undersigned is taking into
account not only the benefit an interim award confers onto the petitioner here, but
the benefit of an interim award for the objectives of the Program in general.

       The Vaccine Program’s objective is to provide compensation to deserving
claimants. Congress recognized the importance of effective legal representation in
obtaining that objective, which is why reasonable attorneys’ fees and costs are
awarded when a claim is supported by reasonable basis and is brought in good
faith. Saunders v. Sec'y of Health & Human Servs., 25 F.3d 1031, 1036 (Fed. Cir.
1994). A delay in paying undisputed fees may cause capable attorneys to
reevaluate their representation of petitioners.
      For these reasons, the undersigned finds that an interim award of the
undisputed portion of Ms. Martin’s motion for fees and costs is appropriate. This
award only addresses the portion of Ms. Martin’s fees motion that relates to fees
incurred by her attorney and his paralegal. Her requests for costs, including
guardianship costs, will be addressed in the forthcoming final fees decision. That
decision will also evaluate any attorneys’ fees incurred subsequent to her initial
motion for fees and costs.

      II.    Attorney and Paralegal Fees
      The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step

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process. 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. Id. at 1348.

      A.     Reasonable Hourly Rate

       The petitioner requests $250.00 per hour for her attorney and $100 per hour
for his paralegals. Under the Vaccine Act, special masters, in general, should use
the forum (District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d
at 1349. There is, however, an exception (the so-called Davis County exception)
to this general rule when the bulk of the work is done outside the District of
Columbia and the local rates are substantially lower. Id. 1349 (citing Davis Cty.
Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorney’s work
was done outside of the District of Columbia, in Cary, NC. The petitioner does not
argue that work in Cary, NC should receive forum rates and the undersigned
declines to find as much. Nonetheless, the petitioner does support the requested
rates by means of a detailed and persuasive affidavit. Pet’r’s Mot., filed Mar. 8,
2018, appd’x 1. Based on the affidavit and the undersigned’s experience with Mr.
Bolton, the requested rates are reasonable.

      B.     Reasonable Number of Hours

      The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.

       In light of the Secretary’s lack of objection to any specific entries in Mr.
Bolton’s bill, the undersigned has reviewed the billing statement for its
reasonableness. See Shea v. Sec’y of Health & Human Servs., No. 13-737V, 2015
WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10, 2015) (“special masters are not
obligated to evaluate an attorney’s billing records on a line-by-line basis in making
the reasonableness determination … and certainly need not do so when Respondent
has not attempted to highlight any specific alleged inefficiencies”). A review of
the billing entries indicate that all of the individual entries and the total number of
hours billed are reasonable.
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                                  *     *     *

      For the aforementioned reasons, petitioner is awarded:
      A lump sum of $39,100 in the form of a check made payable to
      petitioner and petitioner’s attorney, Dan Bolton, III.

        This amount represents an interim award of attorneys’ fees and other
litigation costs available under 42 U.S.C. § 300aa-15(e). In the absence of a
motion for 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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