    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                       No. 16-1027V
                                   Filed: March 20, 2019

* * * * * * * * * * * * * *
SKYLEE BUTLER,             *                         UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                         Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Andrew Downing, Esq., Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Ashley Simpson, Esq., United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

       On August 18, 2016, Crystal Butler filed a petition for compensation under the National
Vaccine Injury Compensation Program on behalf of her then-minor daughter.2 Skylee Butler
(“Ms. Butler” or “petitioner”) was then substituted as petitioner on October 9, 2018 upon reaching
the age of majority. ECF No. 44. Petitioner alleged that she received an HPV vaccine on August
21, 2013, and thereafter suffered various injuries. Petition, ECF No. 1, at 1. On November 30,
2018, petitioner filed an unopposed Motion to dismiss the petition, and on the same day the
undersigned issued her Decision dismissing the petition for insufficient proof. ECF No. 46.

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 Because this unpublished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 December 10, 2018, 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
$40,279.37, representing $29,282.50 in attorneys’ fees and $10,996.87 in costs. Fees App at 2.
Pursuant to General Order No. 9, Petitioner warrants that she has not personally incurred any
expenses in pursuit of this litigation. Id. at 4. Respondent responded to the motion on March 5,
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. 52.
Petitioner did not file a reply thereafter.

        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



                                                 2
        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 the following rates of compensation for the work of her attorneys: for
Mr. Andrew Downing, $350.00 per hour for work performed in 2016, $375.00 per hour for work
performed in 2017, and $385.00 per hour for work performed in 2018; and for Ms. Courtney Van
Cott, $195.00 per hour for work performed in 2017 and $205.00 per hour for work performed in
2018. Fees App. at 38-39. Petitioner also requests that paralegals be compensated at $100.00 per
hour for work performed in 2016 and $135.00 per hour for work performed in 2017-2018. Id.
These rates are consistent with what the undersigned and other special masters have previously
awarded Van Cott & Talamante attorneys and paralegals. See Cowles v. Sec’y of Health & Human
Servs., No. 16-1164V, 2018 WL 2772312 (Fed. Cl. Spec. Mstr. Apr. 26, 2018); Carey v. Sec’y of
Health & Human Servs., No. 16-828V, 2018 WL 1559805, at *6 (Fed. Cl. Spec. Mstr. Feb. 26,
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,
434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
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 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
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).

        Upon review, the undersigned finds the hours billed by Mr. Downing, Ms. Van Cott, and
paralegal Robert Cain to be reasonable. The hours billed by paralegal Danielle Avery, however,
contain several errors that warrant an overall reduction. First, Ms. Avery billed for administrative
tasks such as payment of invoices for medical records. See, e.g., Fees App. at 15-18 (entries on
7/28/16, 8/1/16, 8/3/16, 8/10/16,8/18/16, 9/7/16, 12/1/16, 5/22/17).4 Other administrative tasks
charged for include scanning records, bates stamping, and otherwise preparing records for filing
(entries on 11/22/16, 4/13/17, 12/8/17, 12/28/17,1/30/18). These tasks are not compensable under
the Act.

         Also concerning is that Ms. Avery appeared to view 0.2 hours as the minimum amount of
time required to complete most tasks. For example, she routinely billed 0.2 hours to “receive,
review and process” all filings made in this case, no matter how mundane or routine they may be,
such as the notice of assignment to the undersigned, scheduling orders of the Court, and status
reports filed by Respondent. She also routinely billed at least 0.3 hours to “finalize and
electronically file” documents such as exhibits and status reports. In the undersigned’s experience,
all of these tasks are typically billed at 0.1 hours, if they are billed for at all. Other special masters
have previously noted that billing in minimum increments greater than 0.1 hours is not permissible
in the Vaccine Program. See Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL
948371, at *2-3 (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).




4
  The examples listed herein are merely meant to be illustrative of an issue and are not intended
to represent all such instances of the issue in the billing records.
                                                    4
       Accordingly, the undersigned will reduce the total number of hours billed by Ms. Avery
by 20%.5 The record indicates that she billed a total of 51.6 hours for a total of $6,063.00. Fees
App. at 31. This results in a total reduction of $1,212.60.

       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 $10,996.87 in costs for obtaining medical records, the Court’s filing fee, and the expert
work of Dr. Yehuda Shoenfeld in reviewing the medical records and preparing an expert report.
Fees App. at 33-40. Petitioner has provided adequate documentation for all of these costs, and the
undersigned finds them to be reasonable and shall award them in full.6

        Warranting reduction is petitioner’s claimed expenses for ingoing and outgoing faxes.
Petitioner’s counsel has been notified previously that operating the office fax machine is part of a
law office’s general overhead and thus separate costs should not be charged to individual cases.
Sheridan, 2019 WL 948371, at*3; Bourche v. Sec’y of Health & Human Servs., No. 15-232V,
2017 WL 2480936, at *5 n.5 (Fed. Cl. Spec. Mstr. May 11, 2017). Other special masters have also
held that costs associated with faxes are non-compensable. See Dashty v. Sec’y of Health & Human
Servs., No. 15-966V, 2018 WL 6990680, at *5 (Fed. Cl. Spec. Mstr. Nov. 21, 2018). The total
amount billed for sending and receiving faxes in the instant case is $281.50. Fees Ap. At 40.
Accordingly, the award of attorneys’ costs is reduced by $281.50.

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:


5
  The undersigned notes that if these problematic billing practices continue, a larger reduction to
attorneys’ fees may be made.
6
  Although the undersigned finds the total amount requested as reimbursement for Dr.
Shoenfeld’s work to be reasonable, the undersigned notes that the reasonableness of Dr.
Shoenfeld’s requested hourly rate is not being considered at this time. Additionally, while the
total number of hours billed by Dr. Shoenfeld (18.0) is reasonable for review of medical records,
medical literature, and preparation of an expert report, Dr. Shoenfeld only presented two billing
entries – ten hours for records and literature review and eight hours for writing the report. Entries
such as these constitute block-billing, which is impermissible in the Vaccine Program whether it
is done by attorneys or experts. Both Dr. Shoenfeld and petitioner’s counsel Mr. Downing have a
plethora of experience in the Vaccine Program and are both no doubt aware of this requirement
for billing clarity. Counsel should be expected to notify experts to track their work with
sufficient detail and should exercise care to make sure that invoices submitted to the Court for
review and reimbursement contain this level of detail. Failure to provide sufficiently detailed
invoices for experts in the future may result in a reduction of the amount reimbursed.


                                                  5
    1) A lump sum in the amount of $38,785.27, representing reimbursement for Petitioner’s
       attorneys’ fees and costs, in the form of a check payable to Petitioner and Mr. Andrew
       Downing of Van Cott & Talamante, PLLC.

        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.7

       IT IS SO ORDERED.


                                             s/Mindy Michaels Roth
                                             Mindy Michaels Roth
                                             Special Master




7
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
                                                6
