# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 8

- 805 V

Filed: September 18, 2020

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

MATTHEW HUSSONG

, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Jessica A. Olins

, Esq.

, Maglio Christopher and Toale, PA, Seattle, WA , for p etitioner

. Darryl R. Wishard

, Esq.

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

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth , Special Master:

O n June 6, 2018

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

. 2 Petitioner allege d that he developed Guillain

- Barré syndrome and chronic inflammatory demyelinating polyneuropathy after receiving a n influenza

vaccination on November 18, 2015

. See Petition , ECF No. 1

. On April 21 , 2020 , the parties filed a stipulation, which the undersigned ado pted as her Decision awarding compensation on the same day . ECF No. 4 2

.

On May 12 , 2020

, p etitioner filed an application for attorn eys’ fees and costs. ECF No.

4 6 (“Fees App.”). Petitioner request s 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 privac y. 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 Ch ildhood Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755.2

$ 54,963.93 (representing $ 53,701.30 in attorneys’ fees

, $ 1, 262.63 in attorneys’ costs. Fees App

. at 2

. Pursuant to General Order No. 9, petitioner warrants that he has not personally incurred any

costs in this case. Id. Respondent respon ded to the motion on May 13 , 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

- 3

, ECF No. 48

. Petitioner filed a reply on May 13

, 2020, reiterating h is belief that the requested attorneys’ fees and costs are reasonable. ECF No.

49

.

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, 1 891 (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

w as awarded compe nsation, she is entitled to a reasonable award of 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 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 (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

The undersigned has reviewed the hourly rates requested by petitioner for the work of his counsel at Maglio Christopher and Toale (the billing records indicate that attorney work was performed by Mr. Altom Maglio, Ms. Ann Golski, Mr. Brent Elswick, Ms. Danielle Strait, Mr.

Is aiah Kalinowski, and Ms. Jessica Olins) and finds that the rates requested are consistent with what these attorneys have previously been awarded for their Vaccine Program work. Accordingly, the requested rates are reasonable and shall be awarded herein.

B. Hours Reasonably 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 mult iple 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. , 12 9 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 hour ly 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] experienc e 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

–

3 The OSM Fee Schedules are available 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

29 (affirming t he 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 largely reasonable, particularly those billed by counsel. The hours billed by paralegals, however, are slightly excessive. The undersigned notes that paralegals billed time for review of routine filings which had already been reviewed by

counsel. Additiona lly, the undersigned’s impression upon review of the billing entries is that an overall excessive amount of time was billed for acquiring medical records. Accordingly, the undersigned shall reduce the billed paralegal hours by ten percent to account for th ese issues, resulting in a reduction of $1,123.18. Petitioner is therefore awarded final attorneys’ fees of $52,578.12.

C. Reasonable Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Heal th & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner request s a total of $ 1, 262.63 in costs, comp rised of obtaining medical records , postage, and the Court’s filing fee

. Fees App. Ex. 2 at 1

- 2

. These are typical costs in Vaccine Program cases and appear reasonable in the undersigned’s experience

. Petitioner has also provided adequate documentation supporting all of the requested costs. Accordingly, petitioner shall be reimbursed in full.

III. Conclusion

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

GRANTED

. The undersigned hereby awards a lump sum in the amount of $ 53,840.75

, representing reimbursement for petitioner ’ s attorneys’ fees and costs, in the form of a check payable to petitioner and h is counsel, Ms. Jessica Olins, and be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.

In the absence of a motion for review f iled pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith. 4

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth 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).