# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 8

- 1 498 V

Filed: March 26, 2021

* * * * * * * * * * * * * *

SHERI L. BERRIER

, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

* * * * * * * * * * * * * *

Zachary J. Hermsen

, Whitfield & Eddy Law, Des Moines, IA , for p etitioner

. Althea W. Davis

, U.S. Department of Justice, Washington, DC, for r espondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth

, Special Master:

O n September 28 , 2018

, Sheri Berrier ( “ p etitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program

. 2 Petitioner allege d that s he developed a shoulder injury related to vaccine administration after receiving a n influenza v accination on September 30, 2016

. See Petition , ECF No. 1

. On June 16 , 2020, the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on the same day. ECF

No. 3 0

.

On December 9 , 2020

, p etitioner filed an application for final attorn eys’ fees and costs.

ECF No. 35 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of

1 The undersigned intends to post this Decision on the United States Court of Federal Claims' website. This

means the decision 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 su ch 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 Ac t 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. 3755.2

$ 5,783.90 (representing $ 5, 761.50 in attorneys’ fees and $ 22.40 in costs)

. Fees App

. at 5

. Pu rsuant to General Order No. 9, petitioner has indicated s he has not personally incurred any costs in pursuit of this litigation. ECF No. 34. Respondent respon ded to the motion on December

10 , 2020 , 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.” Res ponse at 2

, ECF No. 36

. 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, because petitioner was awarded compensation pur suant to a stipulation, s he is entitled to a final award of reasonable attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” and “other costs” under the Vacc ine 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 (quot ing

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 objecti ons 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

ap plication when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs. , 102 Fed. Cl. 719, 729 (2011).

II. Discussion

A. Reasonable Hourly Rate

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, 138 4 (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 forum3

jurisdiction” and “there is a very si gnificant 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 Specia l 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

McCulloc h 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 hourly rates for the work of h er counsel at Whitfield Eddy

Law: for Mr. Zachary Hermsen, $215.00 per hour for work performed in 2019 and $265.00 per hour for work performed in 2020; for Mr. Thomas Re a vely, $425.00 per hour for work performed

in 20 19 ; and for Ms. Bryn Hazelwonder, $200.00 per hour for work performed in 2020. Fees App

Ex. 5 at 5. The 2019 rates are reasonable and consistent with what Mr. Hermsen and Mr. Reavely have previously been awarded for their vaccine program work. The 2020 rates require additional

discussion.

The requested 2020 rate for Mr. Hermse n exceeds what he has previously been awarded. See K.G. v. Sec’y of Health & Human Servs. , No. 18

- 120V, 2020 WL 345990, at *4 (Fed. Cl. Spec. Mstr. May 21, 2020) (noting that an hourly rate of $260.00 per hour was “a fairly abrupt upward

increase” from his 2019 rate and finding $255.00 per hour to be more reasonable based on Mr. Hermsen’s credentials). Petitioner acknowledges this lower rate, but contends that an increase is warranted “to reflect his increased experience, which now places him at over five y ears as a practicing attorney

– at the time of the decision in K.G. awarding him $255 per hour, he had only practiced four years.” Fees App. at 4. However, the special master in K.G. noted that Mr. Hermsen’s experience placed him within the experience rang e of 4

- 7 years on the OSM Fee

Schedules while also acknowledging that Mr. Hermsen had approximately 5 years of experience in 2020. Further, as the special master noted , Mr. Hermsen’s “experience as a lawyer generally, modified by his specific Vaccine Progr am experience, does not sufficiently justify a rate increase not awarded to him for work in contemporaneous Vaccine cases.” K .G. , 2020 WL 345990 at *4. The undersigned agrees with the reasoned analysis in K .G. and finds that $255.00 per hour is a

reasonabl e hourly rate for Mr. Hermsen’s 2020 work in the instant case. Application of this rate results in a reduction of $43.00.

Concerning the 2020 rate for Ms. Hazelwonder, this appears to be the first time her rate as an attorney has been addressed by a speci al master. 4 Ms. Hazelwonder has been licensed to practice

3 The 2015

- 202 1 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914

. 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).

4 I n K.G. , the petitio ner sought an hourly rate for Ms. Hazelwonder (then known as Ms. Bryn Hedlund) of $175.00 per hour. The special master ruled that because Ms. Hazelwonder was not admitted to practice in the Court of Federal Claims, she was not eligible to receive attorney rates for her work. Since that time,

Ms. Hazelwonder has become a member of the bar of the Court of Federal Claims . Fees App. at 3.4

law since 2019, giving her approximately one year of overall experience when she performed work in this case and placing her in the lowest tier of experience of the OSM Fee Schedules. Petitioner

no tes that Ms. Hazelwonder has performed attorney work in four additional cases besides the instant case and assisted in other Vaccine Program cases in her capacity as a law clerk before becoming a licensed attorney. However, the overall work performed by Ms . Hazelwonder in the

instant case and K.G. reflects that a minimal amount of the work is attributable to Ms. Hazelwonder (the other cases cited are still pending and have not had a motion for interim fees filed and therefore

Ms. Hazelwonder’s involvement cannot be determined ) . Based upon all of the relevant factors, the undersigned finds that an appropriate hourly rate for Ms. Hazelwonder’s work in 2020 is $175.00 per hour. 5 Application of this rate results in a reduction of $32.50.

B. Hours Re asonably E xpended

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 single task on multipl e 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 F ed. 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 Va ccine 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 a nd 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).

T he overall h ours spent on this matter appear to be reasonable. The undersigned has reviewed the billing entries and f inds that the billing entries adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable

, nor has r espondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final award of attorneys’ fees in the amount of $ 5,686.00

.

5 The undersigned notes that Mr. Hermsen has been compensated at $175.00 per hour for his work in 2017, when he had approxim ately two years of overall experience. The impact of inflation is roughly offset by the additional year of experience possessed by Mr. Hermsen in 2017 compared to Ms. Hazelwonder now

.5

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 $ 22.40 in costs for PACER charges

. T he requested costs appear reasonable in the undersigned’s experience. Accordingly, petitioner is entitled to final attorneys’ costs of $ 22.40

.

III. Conclusion

In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is

GRANTED

. The undersigned hereby awards a lump sum of $ 5,708.40

, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to petitioner and Mr. Zachary Hermsen , Esq.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

court shal l enter judgment in accordance herewith. 6

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master

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