# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: February 11 , 2021

* * * * * * * * * * * * * * UNPUBLISHED
ORANGIE ROBINSON, * No. 1 7

- 1848 V

* Special Master Horner Petitioner, *

*

v. *

*

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

* Respondent. *

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

Leah V. Durant

, Law Offices of Leah V. Durant, PLLC, Washington, DC

, for Petitioner. Mollie D. Gorney , United States Department of Justice, Washington, D C , for Respondent.

DECISION ON ATTORNEYS ’ FEES AND COSTS 1

On November 29 , 2017

, Orangie Robinson (“ petitioner ”), filed a claim under the National

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

- 10

- 34 (2012)

. 2 Petitioner alleged she suffered from a right shoulder injury related to vaccine administration following her receipt of an influenza vaccination on January 10, 2017

. (ECF No. 1.) On March 23, 2020, the parties filed a stipulation, which I adopted as my decision awarding compensation on the same day. (ECF No. 49).

On October 1 3 , 2020

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

5 4 ) (“Fees App.”). Petitioner request s total attorneys’ fees and c ost s in the amount of $ 75,121.68

, representing $ 72,155.10 in attorneys’ fees and $ 2,966.58 in costs

. Fees App

. at 5

. Pursuant to General Order No. 9, petitioner certifies that she has not incurred any fees or costs related to the prosecution of her petition. Fees App. at 2. Respondent responded to the motion on October 1 4

,

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 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States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 ac cordance 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 c itation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2

2020 , indicating that “ Responde nt is satisfied the statutory requirements for an award of attorneys’

fees and costs are met in this case. ” Resp. at 2 (ECF No. 5 5 ). Petitioner filed a reply on October

1 5 , 2020, reiterating her belief that the requested attorneys’ fees and costs are reasonable . (ECF

No. 5 6 ).

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 deter mine 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 o f the fee award based on specific findings. Id. at 1348

.

It is “well within the special 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 records 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 ap plications , however, should not include hours that are “‘excessive, redundant, or otherwise 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.1 1. P etitioner s bear the burden of providing adequate evidence to prove that the requested 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. S ec’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. , 10 2 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience 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 program special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton

, 3 F.3d at 1521.3

a. Hourly Rates

The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the p racticing 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 Mc Culloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

– 2016, 2017, 2018, 2019 , and 2020 can be accessed online. 3

Petitioner requests that h er attorney, Ms. Leah Durant , be compensated at the following hourly rates: $ 3 65.00 per hour for work performed in 2017, $ 3 77 .00 per hour for work performed in 2018, $ 380 .00 per hour for work performed in 2019, and $ 395 .00 per hour for work performed

in 2020. These rates are consiste nt with what M s. Durant has previously been awarded for h er Vaccine Program work, and I find them to be reasonable for work performed in the instant case.

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. Spec. Mstr. Apr. 28, 2015). Cleric al 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 of the submitted billing records, the undersigned finds the majority of the time billed to be reasonable. However, the undersigned notes a general issue of vagueness in the description of many of the billing entries, particularly those for comm unication with petitioner. 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 indication as to the nature and purpose of the communication. See Avgoustis v. Shinseki

, 639 F.3d 1340, 1344

- 45 (Fed. Cir. 2011) . In the instant case, the majority of billing entries concerning communication do not contain any indication of the topic of that communication, (e.g., multiple entries billed for 0.4 hours for “client call”) making it difficult for

me to determine whethe r such communication was necessary and reasonable. Beyond these entries, there many other entries contain some form of communication with client, frequently denoted by “Coordinate with client.” Taken as a whole, t he amount communication with petitioner

app ears slightly excessive.

Accordingly, I will reduce the amount of attorneys’ fees by two percent to account for these issues, resulting in a reduction of $1,443.10. Petitioner is therefore awarded final attorneys’ fees of $70,712.00.

c. Attorneys’ Costs

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

.4

Li ke 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 $ 2,966.58 in attorneys’ costs

. This amount is comprised of acquiring medical records, the Court’s filing fee, and travel costs associated with attending depositions

. Fees App. Ex. 2 at 2

. Petitioner has provided adequate documentation of the requested costs and they appear to be reasonable in my exper ience. Petitioner is therefore awarded the full amount of costs sought.

II. Conclusion

Based on all the above, I find that p etitioner is entitled to the following award of reasonable attorneys’ fees and costs:

Attorneys’ Fees Requested $ 72,155.10 (Reduction to Fees)

- ($1,443.10) Total Attorneys’ Fees Awarded $ 70,712.00

Attorneys’ Costs Requested $ 2,966.58 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 2,966.58

Total Attorneys’ Fees and Costs $ 73,678.58

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 er counsel as f ollows: a lump sum in the amount of $ 73,678.58 , representing reimbursem ent for petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and petitioner’s counsel, Ms. Leah Durant

.

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

C ourt shall enter 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).