# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 1 7

- 1556 V

Filed: A ugust 17 , 2021

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

ROBIN COOLEY

, * UNPUBLISHED

* Petitioner, *

*

v. * Attorneys’ Fees and Costs

*

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Mari C. Bush

, Boulder, CO , for p etitioner

. Adriana R. Teitel

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

DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth , Special Master:

On October 18, 2017

, Robin Cooley (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 2 Petitioner alleged that she suffered a shoulder injury related to vaccine administration after receiving a n influenza vaccination on December 13,

2016

. See Petition ( ECF No. 1 )

. On April 7, 2021 , the parties filed a stipulation, which the undersigned adopted as her decision awarding compensation on the same day. ( ECF No. 65)

.

On May 18 , 2021, petitioner filed an application for final attorneys’ fees and cos ts. (“Fees App.”) (ECF No. 71) . Petitioner requests total attorneys’ fees and costs in the amount of $ 52,724.13 , representing $ 5 2 ,017.70 in attorneys’ fees and $ 706.43 in costs. Fees App. at 2

.

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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 Childhood Vaccine Injury Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755.2

Pursuant to General Order No. 9, petitioner states s he has pe rsonally incurred costs associated with the prosecution of h er petition in the amount of $500.00. (ECF No. 72). Respondent

respon ded to the motion on June 1 , 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. 73)

. Petitioner filed her reply on June 4, 2021 , reiteratin g her belief that the requested attorneys’ fees and costs are reasonable.

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, 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” and “other costs” under the Vacc ine 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)). That 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 petitioners with notice and opportunity to respond. See Sabella v. Sec'y of Health & Huma n 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. Sec'y of Health & Human Servs. , 102 Fed. Cl. 719, 729 (2011).

II. Discussion

A. Reasona ble 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 is 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, 138 4 (Fed. Cir. 2011) (citing Avera , 515 F. 3d at 1349). 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 si gnificant difference” between the local hourly rate 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 Specia l 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

McCulloc h 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 that her attorney, Ms. Mari Bush, be compensated at $410.00 per hour for all work performed in this case, from 2017

- 2021. The undersigned finds this to be a reasonable hourly rate for Ms. Bush’s work in 2020 and 2021. However, Ms. Bush has previou sly billed at and been awarded $400.00 per hour for her Vaccine Program work through 2019. See Tinoco v. Sec’y of Health & Human Servs. , No., 2019 WL 6125117, at *2 (Fed. Cl. Spec. Mstr. Aug. 29, 2019). The undersigned will therefore compensate Ms. Bush’s work in those years at the rates she has previously billed at, resulting in a reduction of $614.00.

Petitioner also requests paralegal rates of $150.00 per hour for all work performed in this case. The undersigned notes that this rate exceeds the maximum paralegal rate prescribed by the OSM Fee Schedule for 2017 as well was what Ms. Bush’s paralegals hav e previously been

awarded. Id. (awarding paralegal Alyssa Kittel $125.00 per hour and paralegal Joyce Harris $145.00 per hour). The undersigned will also award these paralegal rates, resulting in a reduction

of $64.50.

B. Hours Reasonably E xpended

Attorney s' 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 o f 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 w hat 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,

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 McC ulloch v. Sec’y of Health &

Human Servs. , No. 09

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

2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. Jun e 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] reasonable for the work

done.” Saxton , 3 F.3d at 1522. In exercising that discretion, special masters m ay 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, the undersigned finds that a reduction must be made due to the vagueness of many of the billing entries. Although some of the entries for communication, such as phone calls

and e

- mails, contain a brief description of the subje ct of the communication, most do not. As the Federal Circuit has previously ruled, disclosure of the general subject matter of billing statements does not violate attorney

- client privilege and billing entries for communication should contain

some indicatio n as to the nature and purpose of the communication. See Avgoustis v. Shinseki , 639 F.3d 1340, 1344

- 45 (Fed. Cir. 2011).

Additionally, counsel has billed time at attorney rates for tasks which are more paralegal in nature, such as calendaring deadlines, scanning and mailing documents, and filing documents. These issues have previously been raised by other special masters con cerning Ms. Bush’s billing practices. See Tinoco , 2019 WL 6125117 at *3

- 4.

In evaluating a motion for attorney's fees and costs, special masters “need not, and indeed should not, become green

- eyeshade accountants.” Fox v. Vice , 563 U.S. 826, 838, 131 S.Ct . 2205, 180 L.Ed.2d 45 (2011). The undersigned shall therefore, in the exercise of her discretion in setting reasonable fees to be awarded, reduce the request for attorney fees by five percent. Petitioner is therefore awarded final attorneys’ fees of $ 48,8 42.25

.

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 $ 706.43 in costs for acquiring medical records, the Court’s filing fee, postage

, photocopies . The undersigned finds th ese cost s reasonable and supported with adequate

documentation . Accordingly, petitioner is entitled to the full amount of costs sought.

Pursuant to General O rder No. 9, petitioner has also indicated she has personally incurred costs of $500.00 for a retainer paid to her counsel, which was offset against the aforementioned

costs incurred. As those costs have been supported through documentation, petitioner’s co sts shall

also be reimbursed.

III. Conclusion5

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

GRANTED

. The undersigned hereby awards the following:

1) a lump sum of $ 49,548.68

, representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to petitioner and M s. Mari Bush;

and

2) a lump sum of $500.00, 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 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).