# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 7

- 2009 V

Filed: April 30, 2021

* * * * * * * * * * * * * *
EMILY MCHENRY, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Edward M. Kraus, Law Office of Chicago Kent

, Chicago, IL , for p etitioner

. Mallori B. Openchowski

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

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth , Special Master:

On December 21, 2017

, Emily McHenry (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleged that she developed reactive arthritis and tendonitis after receiving a human papillomavirus (“HPV”) vaccinat ion on January 13, 2015, and juvenile idiopathic arthritis after receiving a HPV vaccination on August 17, 2016.

See Petition, ECF No. 1. On October 28, 2020, the parties filed a stipulation, which the undersigned adopted as her decision awarding compensat ion on the same day. ECF No. 54.

On January 27, 2021, petitioner filed an application for final attorneys’ fees and costs. ECF No. 59 (“Fees App.”). Petitioner requests 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 privacy. If, upon review, the undersigned agrees that the iden tified 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 Sta tes 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, 10 0 Stat. 3755.2

$ 45,876.09 , representing $ 32,568.10 in attorneys’ fees and $ 13,307.99 in costs. Fees App. at 1. Pursuant to General Order No. 9, petitioner states s he has not personally incurred any costs associated with the prosecution of his petition. Id. Respondent respon ded to the motion on

Fe bruary 12 , 2021 , 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

, ECF

No. 6 0

. Petitioner did not file a reply thereafter.

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, 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 petition er was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys' fees” a nd “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 e xpended on the litigation 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 discreti on in awarding fees 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). Sp ecial masters need 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 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 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

Petitioner requests the following hourly rates for the work of h er counsel : for Mr. Edward
Kraus, $398.00 per hour for work performed in 2017, $409.00 per hour for work performed in 2018, $418.00 per hour for work performed in 2019, and $435.00 per hour fo r work performed in 2020; and for Ms. Amy Kraus, $318.00 per hour for work performed in 2017, $327.00 per hour for work performed in 2018, $334.00 per hour for work performed in 2019, $365.00 per hour for work performed in 2020. These hourly rates are cons istent with what counsel have pre viously been awarded for their Vaccine Program work, and the undersigned finds them to be reasonable 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 multiple occasions, multiple at torneys 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 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. 2 8, 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 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 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] reason able 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 2015

- 2020 Fee Schedules can be accessed 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 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 appear to be reasonable. The undersigned has

reviewed the bil ling entries and finds that th ey adequately describe the work done on the case and the amount of time spent on that work. None of the entries appear objectionable, nor has respondent identified any entries as objectionable. Accordingly, petitioner is entit led to a final award of attorneys’ fees in the amount of $ 32,568.10

.

C. Reasonable 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 requests a total of $ 13,307.99 in costs for acquiring medical records, the Court’s filing fee, postage , and work performed by petitioner’s expert, Dr. M. Eric Gershwin . The undersigned finds th ese cost s reasonable and supported with adequ ate documentation . Accordingly, petitioner is entitled to the full amount of costs sought.

III. Conclusion

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

GRANTED

. The undersigned hereby awards a lump sum of $ 45,876.09

, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jo intly to petitioner and Mr. Edward M. Kraus , Esq.

In the absence of a motion for review filed 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).