# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: November 23 , 2021

* * * * * * * * * * * * * * UNPUBLISHED

MIRANDA SELLERS

, * No. 1 8

- 435 V

* Special Master Horner Petitioner, *

*

v. *

*

SECRETARY OF HEALTH * Attorneys ’ Fees and Costs
AND HUMAN SERVICES, *

* Respondent. *

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

Leah V. Durant

, Law Offices of Leah V. Durant, PLLC, Washington, DC

, for Petitioner.

Camille M. Collett , United States Department of Justice, Washington, D C , for Respondent.

DECISION ON ATTORNEYS ’ FEES AND COSTS 1

On March 23, 2018

, Miranda Sellers (“ petitioner ”), filed a claim under the National

Childhood Vaccine Injury Act, 42 U.S.C. § 300aa

- 10

- 34 (2012)

. 2 Petitioner alleged s he suffered a shoulder injury related to vaccine administration following h er receipt of an influenza vaccination

on October 3 , 2016

. (ECF No. 1.) On January 19 , 2021 , the parties filed a proffer , which I adopted as my decision awarding compensation on January 2 1 , 2021 . (ECF No. 52 ).

On August 22

, 2021

, p etitioner filed an application for attorneys’ fees and costs. ( ECF No.

57 ) (“Fees App.”). Petitioner request s total attorneys’ fees and c ost s in the amount of $ 49,637.78

, representing $ 42,965.29 in attorneys’ fees and $ 6,672.58 in costs incurred by petitioner’s current
counsel of record, Ms. Leah Durant

. Fees App

. at 1

. Petitioner also requests $2,240.00 in attorneys’
fees for her former counsel, Mr. Jason Hatfield. Id. Pursuant to General Order No. 9, petitioner

1 I intend to post this Ruling on the United States Court of Federal Claims ’ website. This means the R uling 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, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States

Court of Federal Claims’ website in ac cordance 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. Hereinafter, for ease

of c itation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

certifies that s he has not incurred a ny fees or costs related to the prosecution of h er petition. Id

. Respondent responded to the motion on August 23 , 2021 , indicating that “ Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case. ” Resp. at

2 (ECF No. 58 ). Petitioner filed a reply on August 2 4 , 2021

, reiterating h is belief that the requested attorneys’ fees and costs are reasonable . (ECF No. 59 ).

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys ’ fees and costs. § 15(e). 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, 134 7 (Fed. Cir. 2008). This is a two

- step process. Id. at 1347

- 48. First, a court determines an “initial estimate

. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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 ’ fees and costs.”). Applications for attorneys ’ fees must include contemporaneous and specific billing

rec ords 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). Such applications , however, should not include hours that are “‘excessive, redundant, or otherwis e unnecessary.’” Saxton , 3 F.3d at 1521 (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum , 465 U.S. at 89 4

- 95

. The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. P etitioner s bear the burden of providing adequate evidence to prove that the reques ted hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte , without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs. , 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in

a line

- by

- line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human

Servs. , 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with t he Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t of Health & Human Servs. , 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant

part , 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxto n , 3 F.3d at 1521.3

a. Hourly Rates

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, 201 5 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). The Court has since updated the McCulloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

– 2016, 2017, 2018, 2019 , and 2020 can be accessed online. 3

Petitioner requests t he following hourly rates for the work of her counsel : for Ms. Leah
Durant, $ 3 65.00 per hour for work performed in 2017, $ 3 77 .00 per hour for work performed in 2018, $ 380 .00 per hour for work performed in 2019, $ 395 .00 per hour for work performed in 2020

, and $420.00 per hour for work performed in 2021 ; and for Mr. Michael Milmoe, $455.00 per hour for work performed in 2018, $464.0 0 per hour for work performed in 2019, $484.00 per hour for work performed in 2020, and $509.00 per hour for work performed in 2021. These rates are

consistent with what counsel has previously been awarded for their Vaccine Program work, and I

find them to be reasonable for work performed in the instant case.

b. Hours 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 , 3 F.3d at 1521. 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 & H uman 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.

Upon review, the overall num ber of hours billed appears to be reasonable. I have reviewed the billing entries and find that they adequately describe the work done on the case and the amount of time spent on that work. I do not find any of the entries to be objectionable, nor has resp ondent identified any as such. Petitioner is therefore awarded final attorneys’ fees of $ 42,965.29

.

c. Attorneys’ 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 request s a total of $ 6,672.58 in attorneys’ costs

. This amount is comprised of acquiring medical records, expert review of those records , the Court’s filing fee, and work pe rformed by a medical expert,

Dr. Cliff Colwell

. Fees App. Ex. 2 at 2

. Petitioner has provided adequate documentation of the requested costs and they appear to be reasonable in my experience. Petitioner is therefore awarded the full amount of costs sought.

3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914

.4

Additionally, I have reviewed the amount incurred for the work of Mr. Hatfield, who expended 6.7 hours in meeting with petitioner and reviewing the case before reaching out to Ms. Durant and transferring the case over to her. This amount is reasonable and shall be fully

reimbursed.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), I have rev iewed the billing records and costs in this case and finds that p etitioner ’s request f or fees and costs is

reasonable. I find it reasona ble to compensate petitioner and h is counsel as f ollows:

1) a lump sum in the amount of $ 49,637.87 , representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Ms. Leah Durant ; and

2) a lump sum in the amount of $2,240.00, representing reimbursement for petitioner’s attorneys’ fees for her prior counsel, in the form of a check payable to petitioner and Mr. Jason Hatfield. The check should be forwarded to Ms. Durant so that she may

forwa rd it on to Mr. Hatfield.

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

C ourt shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

s/ Daniel T. Horner

Daniel T. Horner Special Master

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek

review. Vaccine Rule 11(a).