# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: September 16 , 2022

* * * * * * * * * * * * * * UNPUBLISHED

WAYNE STEPHEN FAULK * on behalf of the Estate of *
JEFFREY WAYNE FAULK, * No. 17

- 252 V

* Special Master Horner Petitioner, *

*

v. *

*

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

* Respondent. *

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

Milton Clay Ragsdale, IV

, Ragsdale LLC, Birmingham, AL

, for Petitioner.

Nina Ren , United States Department of Justice, Washington, D C , for Respondent.

DECISION ON ATTORNEYS ’ FEES AND COSTS 1

On February 22, 2017, Jeffrey Wayne Faulk (“Mr. Faulk”) filed a claim under the National

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

- 10

- 34 (2012)

. 2 After Mr. Faulk’s passing on March 22, 2017, Wayne Stephen Faulk (“petitioner”), as legal representative of Mr. Faulk’s estate, was substituted as petitioner. Petitioner alleged that Mr. Faulk suffered from Guillain

- Barré syndrome after receiving a hepatit is B vaccine on April 24, 2014

. (ECF No. 1)

. May 3, 2022 , the parties filed a stipulation , which I adopted as my decision awarding compensation on the same day . (ECF No. 6 5 ).

On February 8, 2022

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

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 un published 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 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 Childhood Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

6 0 ) (“Fees App.”). Petitioner request s total attorneys’ fees and c ost s in the amount of $ 114,576.70

, comprised of $86,836.50 in attorneys’ fees and $27,740.20 in attorneys’ costs

. Pursu ant to General Order No. 9, petitioner certifies that he has not incurred any fees or costs related to the prosecution

of h is petition. Id

. at 2. Respondent responded to the motion on February 9 , 2022 , 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. 6 1 ). Petitioner did not file a reply thereafter.

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 spe cial 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 exper ience with the 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 program3

special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton

, 3 F.3d at 1521.

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, 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). 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 the following rates of compensation for the work of h is counsel: for Mr. M. Clay Ragsdale, $385.00 per hour for work performed in 2016

, $400.00 per hour for work performed in 2017, $410.00 per hour for work performed in 2018, $420.00 per hour for work performed in 2019, $430.00 per hour for work performed in 2020, and $450.00 per hour for work performed in 2021; and for Ms. Allison Riley

, $250.00 per hour for work performed in 2016, $270.00 per hour for work performed in 2017, $290.00 per hour for work performed in 2018, $305.00 per hour for work performed in 2019, $325.00 per hour for work performed in 2020, and $350.00 per hour for work performed in 2021. The undersigned has reviewed the requested rates and finds them to be reasonable and consistent with what special masters have previously awarded to petitioner’s counsel for their Vaccine Program work. See, e.g. Eason v. Sec’y of Health &

Human Servs. , No. 18

- 406V, 2022 WL 1869353 (Fed. Cl. Spec. Mstr. May 9, 2022); Brown v. Sec’y of Health & Human Servs. , No. 17

- 253V, 2018 WL 5095121 (Fed. Cl. Spec. Mstr. Sept. 6, 2018). Accordingly, the requested hourly rates are reasonable.

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 & Human Servs. , No. 08

– 243V, 2015 WL 2399211, at *9 (Fed. Cl. Spe c. 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 number 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 respondent identified any as such. Petitioner is therefor e awarded final attorneys’ fees of $ 86,836.50.

c. Attorneys’ Costs

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

.4

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 $ 27,740.20 in attorneys’ costs

. This amount is comprised of acquiring medical records

and medical literature

, the Court’s filing fee, postage , work performed by petitioner’s medical

expert s , Dr. M. Eric Gershwin and Dr. William Meador, and work performed by outside counsel

to establish the estate

. Fees App. Ex. 4 at 2

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

.

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 reasonable to compensate petitioner and h is counsel as f ollows: a lump sum in the amount of $ 114,576.70 , representing reimburse ment for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Mr. Milton Clay Ragsdale, IV

.

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

C ourt shall en ter 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).