# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1135 V

Filed: March 11, 2019

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

EDGAR C. KISBY

, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

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

Carol Gallagher

, Esq.

, Linwood , NJ , for P etitioner

. Christine Becer

, Esq. , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

Roth , Special Master:

On August 22

, 2017

, Edgar Kisby (“Mr. Kisby ” or “Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleges that he developed

Guillain

- Barré Syndrome (“GBS”) after receiving the tetanus

- diphtheria

- acellular pertussis (“Tdap”) vaccine on August 16, 2016

. Petition, ECF No. 1. On November 19 , 2018, the parties filed a stipulation , which the undersigned adopted as her Decision awarding damages on the same day. ECF No. 30.

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims'

website. This means the ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to iden tify 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 redac t 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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 Childhood Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755.2

On December 4 , 2018, Petitioner filed an application for attorn eys’ fees and costs. ECF

No. 34 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $31,223.57 (representing $30,010.75 in attorneys’ fees and $1,212.82 in costs). Fees App at 3

. Pursuant to General Or der N o. 9, Petitioner warrants that he has incurred costs of $400 .00 in pursuit of this litigation. Id. Respondent respon ded to the motion on December 1 8 , 2018, 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.” Resp’t’s Resp. at 2

- 3. ECF No. 33 . Petitioner did not file a reply thereafter

.

This matter is now ri pe 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, he 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 l itigation times a reasonable hourly rate.” Id. at 1347

– 48 (quoting

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 f ees and may adjust a fee request

sua sponte , apart from objections 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 ne ed not engage in a line

- by

- line analysis of petitioner's fee application 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 i s 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, 1384 (Fed. Cir. 2011) (citing Avera , 515 F. 3d at 1 349). There is a “limited exception” that provides for attorney's fees3

to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum jurisdiction” and “there is a very significant difference” between the local hourly r ate 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 Special 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 McCulloch 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

Petitione r requests that his attorney, Ms. Carol Gallagher , be compensated at the following rates: $363 .00 per hour for work performed in 2017, and $ 400 .00 per hour for work performed in

2018. See generally Fees App. These rates are consistent with what Ms. Gallagher has previously

been awarded for her work in th e Vaccine Program. See Barabas v. Sec’y of Health & Human

Servs. , No. 16

- 1455V, 2019 WL 549062, at *2 (Fed. Cl. Spec. Mstr. Jan. 28, 2019) ; De Souza v. Sec’y of Health & Human Servs. , 2018 WL 6920676 (Fed. Cl. 2018). Accordingly, no adjustment to the reque sted rates is required.

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 multiple 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 Fed. Cl. 691, 703 (2016). While attorneys may be compensated for non

- attorney

- level work, the rate must be comparable to wh at 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 t hem. 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

3 The 2015

- 2016 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

- Rate

- Fee

- Schedule2015

- 2016.pdf. The 2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys

- Forum

- Rate

- Fee

- Schedule

- 2017.pdf.

The 2018 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S chedule%202018.pdf. The hourly rates contained within the schedules are updated from the

decision in McCu lloch v. Sec’y of Health & Human Servs. , No. 09

- 293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).4

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] experience and judgment, [is] reasonable for the work

done.” Saxton , 3 F.3d at 1522. In exercising that discretion, special masters ma y 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 (80.6 ) appear to be reasonable. The undersigned has reviewed the billing entries and finds that adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable and Respondent has not identified any entries as objectionable either. Accordingly, the requested amount of attorneys’

fees shall be reimbursed in full.

c. Reasonable Costs

Like attorneys’ fees, a request for reimbursement of at torneys’ 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 $1,212.82 in costs. Fees App. Ex. B

. This amount is for obtaining medical records. Petitioner has provided adequate documentation for the costs incurred and shall be reimbursed in full.

d. Petitioner’s Costs

Petition er requests reimbursement of $400 .00 he personally incurred in pursuit of this litigation.

F ees App. at 3. This cost is for the Court’s filing fee

. The undersigned finds this cost to be reasonable

and shall award it in full.

III. Conclusion

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

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

1) A lump sum in the amount of $ 31,223.57 , representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and Ms. Carol Gallagher , Esq.; and

2) A lump sum in the amount of $400 .00, representing reimbursement for Petitioner’s costs, in the form of a check payable to Petitioner.

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

court sh all enter judgment in accordance herewith. 4

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).5

IT IS SO ORDERED.

s/ Mindy Michaels Roth Mindy Michaels Roth Special Master