     In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                             No. 15-423V
                                         Filed: May 4, 2017

* * * * * * * *                *     *   *   * *
DAVID LIGHTBOURNE,                             *
                                               *       Special Master Sanders
                       Petitioner,             *
                                               *       Attorneys’ Fees and Costs;
v.                                             *       Reasonable Hours Expended.
                                               *
SECRETARY OF HEALTH                            *
AND HUMAN SERVICES,                            *
                                               *
                     Respondent.               *
*    * *   *   *   * * * * *             *   * *

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Christine M. Becer, United States Department of Justice, Washington, DC, for Respondent.

                DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

       On April 27, 2015, David Lightbourne (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that as a result of the Hepatitis A and Hepatitis B vaccines
administered on August 6, 2012, and the Tetanus-diphtheria-acellular pertussis (“Tdap”), and
Meningococcal vaccines administered on May 15, 2014, he developed severe gastro-intestinal
(“GI”) distress, nerve pain, confusion, fatigue, disorientation, paresis, transient paralysis and loss
of motor function. Decision Stipulation 1, ECF No. 50. On January 12, 2017, Special Master
Hamilton-Fieldman issued a decision awarding compensation to Petitioner pursuant to the

1
 This decision shall be posted 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). 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 § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a
motion for redaction must include a proposed redacted decision. If, upon review, the
undersigned agrees that the identified material fits within the requirements of that provision, such
material will be deleted from public access.
2
  The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.
parties’ joint stipulation. Id.

         On January 20, 2017, Petitioner submitted his application for Attorneys’ Fees and Costs.
Mot. Att’ys’ Fees, ECF No. 51. On February 6, 2017, Respondent filed his Response to
Petitioner’s motion. Resp’t’s Resp., ECF No. 55. Petitioner did not submit a Reply to
Respondent’s filing. Docket Rep. This matter is now ripe, and after careful consideration, the
undersigned grants Petitioner’s Motion for Attorneys’ Fees in part.

        I.      PROCEDURAL HISTORY

        In Petitioner’s Motion for Attorneys’ Fees, he requested $23,542.50 in fees and $970.14
in costs, totaling $24,512.64. Mot. Att’ys’ Fees. Petitioner’s counsel, Mr. Andrew Downing,
requested an hourly rate of $350 for work completed in 2014 through 2016. Pet’r’s Ex. A at 34,
ECF No. 51-1. Mr. Downing increased his requested hourly rate to $375 for work performed in
2017. Id. Petitioner also requested reimbursement for the work performed by an associate
attorney and two paralegals in this case. Id. Mr. Justin Redman, an associate attorney in Mr.
Downing’s firm, requested an hourly rate of $195 for his work performed in 2014 through 2015.
Id. The paralegals that worked on this case, Danielle Avery and Robert Cain, requested an
hourly rate of $100 for the work they performed in 2014 through 2016. Id. Ms. Avery increased
her hourly rate request to $135 for the work she performed in 2017. Id. Petitioner further
averred that he did not incur any personal costs in this matter. Mot. Att’ys’ Fees 2.

       In his response, Respondent observed that neither the Vaccine Act nor Vaccine Rule 13
“contemplate[] any role for [R]espondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Resp’t’s Resp. 1. Respondent allowed that “the statutory
requirements for an award of attorneys’ fees and costs are met in this case,” and concluded by
asking for the undersigned to “exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 2, 3.

       For the reasons articulated below, the undersigned awards Petitioner $21,717.50 for
attorneys’ fees and costs in full, for a total award of $22,687.64.

        II.     STANDARDS FOR ADJUDICATION

         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, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an
“initial estimate . . . by ‘multiplying the numbers 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.

       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’

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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). Attorneys may be
awarded fees for travel if they provide adequate documentation that they performed legal work
during that travel. Gruber v. Sec’y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010).

        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). For
example, an attorney that has been practicing for twenty or more years has an appropriate hourly
rate between $350 and $425. Id. An attorney with eight to ten years of experience, on the other
hand, has a reasonable hourly rate between $275 and $350. Id.

       III.    DISCUSSION

               A. Reasonable Hourly Rate

        The first step of the lodestar approach involves determining an estimate by calculating
“the numbers of hours reasonably expended on the litigation times a reasonable hourly rate.”
Avera, 515 F.3d at 1347-48 (quotation omitted). The undersigned previously addressed Mr.
Downing’s requested hourly rates in Rich v. Secretary of Health and Human Services, No. 12-
742, 2017 WL 1435879, at *2 (Fed. Cl. Spec. Mstr. Mar. 28, 2017). The undersigned finds Mr.
Downing’s $350 hourly request to be reasonable; however, the undersigned will reduce Mr.
Downing’s 2017 hourly rate to $363. See id. (finding a 3.7% increase in Mr. Downing’s hourly
rate to be reasonable). This reduction equals $36.

        The undersigned has also found that Mr. Redman’s and Mr. Cain’s hourly rates to be
reasonable. See id. Ms. Avery’s hourly rates for 2014 through 2016 are also reasonable;
however, as in Rich, the undersigned will reduce her 2017 requested rate from $135 to $110 per
hour. See id. Similar to Rich, Mr. Downing provides no information related to Ms. Avery’s
qualifications, and therefore, the undersigned will apply the same reasonable increase in Rich to
Ms. Avery’s rate in this case. Id. This reduction equals $85.

               B. Hours Expended

        An attorney in the Vaccine Program will be awarded attorneys’ fees at a reasonable rate
and for “hours reasonably expended.” 515 F.3d at 1348; see also Dingle v. Sec’y of Health &
Human Servs., No. 08-579V, 2014 WL 630473, at *4-*5 (Fed. Cl. Spec. Mstr. Jan. 24, 2014)
(discussing reducing attorneys’ fees for “vague and excessive” billing entries). In a review of
Mr. Caldwell’s billing records, the undersigned found several duplicative billing requests.

       Petitioner’s billing records include several entries for the review of medical records that
were previously reviewed. On August 28, 2014, Mr. Downing recorded a review of medical
records from the Community Hospital of Long Beach. Pet’r’s Ex. A at 1. It is unclear, then,
why Mr. Redman spent 1.5 hours reviewing these same medical records on December 2, 2014.

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Id. at 7. Mr. Redman additionally spent 1.9 hours on that same day reviewing medical records
from Kaiser Permanente. Id. These are the same records he first reviewed on October 10, 2014
and continued to review on December 8, 2014. Id. at 6-7. Mr. Cain also submitted hours on
October 10, 2014 for a review of the Kaiser Permanente records Mr. Redman reviewed on that
same day. Id. at 12, 6. Mr. Downing himself submitted hours to review these same Kaiser
Permanente records for October 13, 2014. Id. at 2. The undersigned will not award Mr.
Downing or Mr. Cain for their duplicative reviews on October 13, 2014 and October 10, 2014,
respectively. The undersigned will also reduce Mr. Redman’s requests for December 2, 2014
and December 8, 2014 by three hours, taking into account previous review of the Long Island
Hospital and Kaiser Permanente records. Additionally, Mr. Redman recorded a review of
records from the C.A.R.E. clinic the same day as Mr. Cain reviewed the same records. Id. at 8,
14. The undersigned will accordingly not award Mr. Redman fees for this duplicative review.
The total of this reduction amounts to $1,369.00.

        Petitioner’s records also include duplicative billing requests for a phone call between Mr.
Downing, Mr. Redman, and Petitioner. Id. at 2, 8. On March 11, 2015, both Mr. Downing and
Mr. Redman submitted a request for reimbursement for the same call with Petitioner. Id. The
undersigned will not award Mr. Redman for this billing request. Mr. Cain and Ms. Avery
submitted duplicate billing requests for October 1, 2014 to “review narrative provided by client,”
and “reviewed . . . [and] extracted client’s ‘story’ and saved to file,” respectively. Id. at 12, 19.
The undersigned will award half of these two requests. Finally, Mr. Redman and Mr. Cain
submitted billing records for the drafting and sending of emails to other attorneys or paralegals in
the firm. Id. at 7, 8, 13, 14. The undersigned will consequently neither award Mr. Redman for
the email billing requests of December 8, 2014 and January 16, 2015, nor award Mr. Cain for the
email billing requests of December 24, 2014; January 5, 2015; or May 7, 2015. Id. The total for
these reductions amounts to $335.00. The total reduction in attorneys’ fees is thus $1,825.00.

               C. Costs

        Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Petitioner’s request for costs
consists of charges related to procuring medical records, postage, and photocopying. Pet’r’s Ex.
A at 29-34. Upon reviewing Petitioner’s request, the undersigned finds these costs to be
reasonable, and therefore awards them in full.

       IV.     CONCLUSION

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned
finds that Petitioner is entitled to attorneys’ fees and costs. Accordingly, the undersigned
hereby awards the amount of $22,687.64,3 to be issued in the form of a check payable

3
  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
generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.1991).

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jointly to Petitioner and Petitioner’s counsel, Andrew D. Downing, of Van Cott &
Talamante, PLLC, for attorneys’ fees and costs.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the above decision.4


       IT IS SO ORDERED.
                                                     s/Herbrina D. Sanders
                                                     Herbrina D. Sanders
                                                     Special Master




4
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a
notice renouncing the right to seek review.

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