# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 11, 2020

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

BRITTON MILLER

, * No. 1 7

- 297 V

* Special Master Sanders Petitioner, *

* UNPUBLISHED

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 ; A lexis B. Babcock , United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

On March 3 , 2017

, Britton Miller (“Petitioner”) filed a petition for compensation pursuant

to the National V accine Injury Compensation Program. 2 42 U.S.C. §300aa

- 10 et seq. (2012).

Petitioner alleged that he developed a shoulder injury related to vaccine administration (“SIRVA”)

as a result of the influenza vaccine he received on October 25, 2015

. On August 6, 2019 , the parties filed a stipulation for award, which the unders igned adopted as her decision awarding compensation on August 12, 2019 . ECF No. 51

.

1 The undersigned intends 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such ma terial 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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. Hereinafter, for ease of citation, all “§” references to the Vacci ne Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).On February 10 , 2020 , Petitioner filed a motion for attorney s’ fees and costs. ECF No. 56

(“Fees App. ”). Petitioner requests total attorney s’ fee s and costs in the amount of $ 52, 316.03

, representing $ 45,943.40 in attorney s’ fees and $ 6,372.63 in attorney s’ costs. Fees App. at 1. Pursuant to General Order No. 9, Petitioner has indicated that he has not incurred any out of pocket

costs

. Id. Respondent responded to the motion on February 11 , 2020 , stating that Respondent “ is

satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this

case ” and asking the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2

- 3, ECF No. 57

. Petitioner file d a reply on February

1 3 , 2020, reiterating h is belief that the requested attorneys’ fees and costs are reasonable.

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 determine reasonable attorneys ’ fees and

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two

- step process. Id. First, a court determines an “initial estimate . . . 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)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348

.

It is “well within the spec ial 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 g rant 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 hour s spent on said work. See Savin v. Sec’y of Health & Human Servs. , 85 Fed. Cl. 313, 316

– 18 (2008). Such applications, 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 895. The “prevailing market rate” is akin to the rate “in the community for similar ser vices by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

a

. Hourly Rate

The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience o f the practicing attorney. McCulloch v. Sec’y of

Health & Human Servs. , No. 09

- 293V, 2015 WL 5634323, at *19 (Fed. Cl. Spe c. Mstr. Sept. 1, 2015), motion for recons. denied , 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). TheCourt has since updated the McCulloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

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

. 3

Petitioner requests th e following rates for h is counsel, Ms. Leah Durant: $350.00 per hour for work performed in 2016, $365.00 per hour for work performed in 2017, $377.00 per hour for work performed in 2018, and $380.00 per hour for work performed in 2019. These rates are

consistent with what Mr. Du rant has previously been awarded for her Vaccine Program work, and the undersigned finds them to be reasonable for work in the instant case.

b . Reasonable Number of Hours

Attorneys’ fees are awarded for the “number of hours reasonably expended on the

liti gation.” 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 .3 d at 1521 (quoting Hensley v.

Eckerhar t

, 461 U.S. 424, 434 (1983)).

Upon review, the undersign ed finds the overall hours billed to be reasonable. Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review, the undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is

en titled to final attorneys’ fees in the amount of $ 45,943.40

.

c. Attorney 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 $ 6,3 72.63 in attorneys’ costs, comprised of acquiring medical records, postage, the Court’s filing fee

, and work performed by Petitioner’s expert Dr. Clifford Colwell, Jr . Fees App.

Ex. 2 at 2

. Petitioner has provided adequate documentation of all these expenses and all appear reasonable in the undersigned’s experience. 4 Accordingly, the requested attorneys’ costs shall be

awarded in full.

II. Conclusion

In accordance with the Vaccine Ac t , 42 U.S.C. §15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and

costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to

compensate Petitioner and h is counsel as follows:

Attorneys’ Fees Requested $ 45,943.40 (Reduction to Fees)

-

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

. The hourly rates contained within the schedules are updated from the decision in McCulloch , 2015 WL 5634323.

4 Concerning the work of Dr. Colwell, the undersigned finds the total amount of attorneys’ costs attributable to his work is reasonable in light of the work perform ed in the instant case. The undersigned is not making a determination as to the reasonableness of his billed hourly rate at this time.Total Attorneys’ Fees Awarded $ 45,943.40

Attorneys’ Costs Requested $ 6,372.63 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 6,372.63

Total Attorneys’ Fees and Costs $ 52,316.03

Accordingly, the undersigned awards a lump sum in the amount of $ 52,316.03

, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and h is attorney
, Ms. Leah Durant.

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

court is dir ected to enter judgment herewith. 5

IT IS SO ORDERED

.

s/ Herbrina D. Sanders

Herbrina D. Sanders Special Master

5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing th e right to seek review.