# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * * DEREK ROBERTS, as Personal * Representative of the ESTATE OF * WILLIE ROBERTS, JR., deceased, *

* No. 1 8

- 1156 V Petitioner, * Special Master Christian J. Moran

*

v. * Filed: May 10 , 2021

*

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

* Respondent. *

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

Theodore J. Hong

, Maglio Christopher & Toale, Seattle, WA

, for Petitioner;

Voris E. Johnson , United States Dep’t of Justice, Washington, DC, for Respondent.

UN PUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS 1

Pending before the Court is peti tioner Derek Robert’s motion for final attorneys’ fees and costs. H e is awarded $ 41,684.91

.

* * *

1 Because this published decision 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). This posting means the

decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 14 days to identify and move to redact medical or other informat ion, 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.2

On August 8, 2018

, petitioner filed for compensation on behalf of his deceased father, Willie Roberts, Jr., under the Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10 through 34

. Petitioner alleged that

the influenza vaccine Mr. Roberts received on September 24 , 2014, which is

contained in th e Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), caused

him to suffer transverse myelitis

. On August 12 , 2020, the parties filed a stipulation, which the undersigned adopted as his decision awarding compensation on the same day. 2020 WL 5413621 ( Fed. Cl. Spec. Mstr. Aug. 12 , 2020).

On September 4 , 2020 , petitioner filed a motion for final attorneys ’ fees and costs (“Fees App.”) . Petitioner requests attorneys’ fees o f $ 43,249.00 and attorneys’ costs of $ 598.36 f or a total request of $ 43,847.36

. Fees App. at 2

. Pursuant to General Order No. 9, petitioner warrants that he has not personally incurred any costs related to the prosecution of h is case. Id. O n September 8 , 2020

,

r espondent filed a response to petitioner’s motion. Respondent a rgues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’

fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the

stat utory requirements for an award of attorneys’ fees and costs are met in this

case .” Id at 2. Additionally, he recommends “that the Court exercise its discretion” when determining a reasonable award for attorneys’ fees and costs. Id.

at 3. Petitioner filed a reply on September 8, 2020, reiterating his belief that the requested fees and costs are reasonable.

* * *

Because petitioner received compensatio n, he is entitled to an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa

– 15(e). Thus, the question at bar is whether the requested amount is reasonable.

The Vaccine Act permits an award of reasonable attorney’s fees and costs. §15(e). T he Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and costs under the Vaccine Act. This is a two

- step

process. Avera v. Sec’y of Health & Human Servs.

, 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, a court det ermines an “initial estimate ... 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)). Second, the court may make an upward or downwar d departure from the initial calculation of the fee award based on specific findings. Id. at 1348. Here, because the lodestar process yields a reasonable result, no additional adjustments are3

required. Instead, the analysis focuses on the elements of th e lodestar formula, a reasonable hourly rate and a reasonable number of hours.

In light of the Secretary’s lack of objection, the undersigned has reviewed the fee application for its reasonableness. See McIntosh v. Secʼy of Health &

Human Servs. , 139 Fed . Cl. 238 (2018)

A. Reasonable Hourly Rates

Under the Vaccine Act, special masters, in general, should use the forum (District of Columbia) rate in the lodestar calculation. Avera , 515 F.3d at 1349. There is, however, an exception (the so

- called Davis County exception) to this general rule when th e bulk of the work is done outside the District of Columbia and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency , 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work

was done outside of the District of Columbia.

Petitioner requests the following rates of compensation for the work of his counsel, Mr. Theodore Hong : $ 290 .00 per hour for work performed in 2018, $ 305 .00 per hour for work performed in 2019, and $ 323 .00 per hour for work performed in 2020. Fees App. Ex. 1 at 26

. These rates are consistent with what Mr. Hong has previously been awarded for his Vaccine Program work, and the undersigned finds them to be reasonable herein. See, e.g.

, Kuznitz v. Sec’y of

Health & Human Servs. , No. 1 8

- 131 V, 20 21 WL 850868 (Fed. Cl. Spec. Mstr. Jan 22, 2021 ).

B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours. Reasonable hours are not excessive, redundant, or otherwise unnecessary. See Saxton v. Sec’y of Health & Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993). The Secretary also did not directly challenge any of the requested hours as

unreasonable.

The undersigned has reviewed the submitted billing records and, on the whole, the billed hours are reasonable. Counsel has done a good job with the level of detail provided in his billin g entries, which has allowed the undersigned to

assess the reasonableness of the hours billed. One minor issue is that Mr. Hong and firm paralegals have occasionally billed for review of the same order, resulting in an excessive amount of time expended on their review

.4

Another issue is excessive time expended on certain tasks. For example, on 5/7/2020, Mr. Hong and paralegals expended a total of .4 hours on preparing and filing a notice of change of address. On 8/3/20, a total of 1.2 hours were expended

o n routine work concerning the stipulation. Additionally, a total of 23.4 hours were billed for the preparation of the instant motion for attorneys’ fees and costs (the majority of which were billed by Mr. Hong). All of these are examples of

excessive time billed in this case , with the time billed on the fees motion the most egregious example

. Upon review, a five percent reduction to the attorneys’ fees is reasonable to offset the aforementioned billing issues. This results in a reduction of $2,162.45. Petit ioner is therefore awarded final fees of $41,086.55.

C. Costs Incurred

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 (Fed. Cl. 1992), aff’d , 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of $ 598.36 in attorneys’ costs

. This amount is comprised of postage and the Court’s filing fee

. Fees App. Ex. 2 at 1

. Petitioner has provided adequate documentation supporting all of the requested costs, and they appear reasonable in the undersigned’s experience. Petitioner is therefore awarded the full amount of attorneys’ costs sought.

E

. Conclusion

The Vaccine Act per mits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa

- 15(e). Accordingly, I award a total of $ 4 1,684.91 (representing $ 41,086.55 in attorneys’ fees and $ 598.36 in attorneys’ costs) as a lump sum in the form of a check jointly payable to petitioner and Maglio Christopher & Toale, P.A.

I n the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED

.

s/Christian J. Moran

Christian J. Moran Special Master

2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review

.