# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 9

- 980 V

Filed: December 3, 2021

* * * * * * * * * * * * * *
LISA DAY, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Danielle A. Strait

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

. Claudia B. Gangi

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

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth , Special Master:

O n July 9 , 2019

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

. 2 Petitioner allege d that s he suffered from Guillain

- Barré syndrome after receiving a tetanus

- diphtheria

- acellular pertussis vaccination on May 17, 2018

. See Petition , ECF No. 1

. On June 8, 2021 , the parties filed a stipulation , which the undersigned adopted as her decision awarding compensation on the same day

. ( ECF No. 34 )

.

On September 20 , 2021

, p etitioner filed an application for final attorn eys’ fees and costs. (“Fees App.”) (ECF No. 38)

. Petitioner requests total attorneys’ fees and costs in the amount

of $ 49,440.39 , representing $ 47,198.80 in attorneys’ fees and $ 2,241.59 i n costs

. Fees App. at 1.

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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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

Pursuant to General Order No. 9, petitioner stat e s s he has not personally incurred any costs associated with the prosecution of h er petition. Id. at 2

. Respondent respon ded to the motion on September 30 , 2021 , stating “Respondent i s 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. 39)

. Petitioner filed a reply on September 30, 2021, reiterating h er belief that the requested attorneys’ fees and costs are reasonable. ( ECF No. 4 0)

.

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 petitioner was awarded compensation pur suant to a stipulation, s he 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” 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 (quoting

Blum v. Stenson , 465 U.S. 886, 888 (1984)). Tha t 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 objections raised by respondent and without providing peti tioners 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 application when reducing fees. See Broekelschen v. S ec'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 her counsel at Maglio Christopher and Toale: for Ms. Danielle Strait, $340.00 per hour for work performed in 2019, $370.00 per hour for work performed in 2020, and $395.00 per hour for work performed in 2021;

for Mr. Brent Elswick, $323.00 per hour for work performed in 2018 and $335.00 per hour for work performed in 2019; for Mr. Altom Maglio, $381.00 per hour for work performed in 2018 and $400.00 per hour for work performed in 2019; and for Ms. Diana Stadelnikas , $415.00 per hour for work performed in 2019. These rates are consistent with what counsel has previously been awarded for their Vaccine Program work and the undersigned finds them to be reasonable herein for work performed in the instant case.

B. Hours Rea sonably 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 multipl e 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 F ed. 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 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 Va ccine 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 a nd judgment, [is] reasonable for the work

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

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

– 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).

Upon review, t he overall h ours spent on this matter appear to be reasonable. The undersigned has reviewed the billing entries and finds that the billing entries 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, petitione r is entitled to a final award of attorneys’ fees in the amount of $ 47,198.80

.

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 $ 2,241.59 in costs for acquisition of medical records, the Court’s filing fee, and postage

. Fees App. Ex. 2

. The undersigned finds t hese cost s reasonable and supported with adequate

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 $ 49,440.39

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

.

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).