# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1033 V

Filed: March 7, 2018

Not to be Published.

************************************* C.A., by her P arents and N atural Guardians, *

T ERESA and DAVID AUDINO, *

*

Petitioner s
, *

* Attorneys’ fees and costs decision ;

v. * r espondent objects to fee award;

* lack of reasonable basis to go forward

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

*

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

Clifford J. Shoemaker

, Vienna, VA , for petitioner s

. C olleen C. Hartley , Washington, DC, for respondent.

MILLMAN, Special Master

DECISION A WARDING ATTORNEYS ’ FEES AND COSTS 1

On August 1, 2017, petitioners filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa

- 10

- 34 (2012), alleging that human papillomavirus (“HPV”)

vaccine tha t their daughter C.A. received on August 14, 2014 caused her dysautonomia whose onset was two days. Pet. at ¶¶ 6, 11.

On September 20, 2017, petitioners filed C.A.’s medical records. C.A.’s medical records do not support petitioners’ allegations that the start of whatever petitioners think she has was two

1 Because this unpublished decision contains a reasoned explanation f or the special master’s action in this case, the special master intends to post this unpublished decision on the United States Court of Federal

Claims’ website, in accordance w ith the E

- Government Act of 2002

, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services) . Vaccine Rule 18(b) states t hat all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar

information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a

d ecision is filed, petitioner s have 14 days to identify and move to redact such information prior to the

document = s disclosure. If the special master, upon review, agrees that the identified material f its within the banned categories listed above, the special master shall redact such material from public access.2

days after her first HPV vaccination. Moreover, no medical doctor has diagnosed C.A. with dysautonomia. The only person who diagnosed C.A. with dysautonomia was a chiropractor named George Michalopo ulos who says he is a chiropractic neurologist but has never attained a medical degree.

On September 22, 2017, the undersigned issued an Order discussing the difficulties in

this case.

On October 24, 2017, the undersigned held the first telephonic status conference in this

case and discussed her Order of September 22, 2017 . Petit ioners’ counsel said he would confer with petitioners about the discussion the undersigned had with counsel

.

On November 7, 2017, petitioners filed a Motion for Decision Dismissing Her [sic] Petition. Petitioners state that they “will be unable to prove that [they are] entitled to compensation in the Vaccine Program” and that “to proceed any further would be unreasonable.” Pet’rs’s Mot. at 1. Furthermore, they state that to proceed any further would waste the resources of the court, respondent, and the Vaccine Program. Id. The undersigned dismissed this case on November 8, 2017.

On December 4, 2017, petitioners filed a motion for attorneys’ fees and costs. Petitioners request $23,751.60 in attorneys’ fees, $418.11 in attorneys’ costs, and $438.05 in petitioners’ costs, for a total request of $24,607.76.

On December 7 , 2017, respondent filed a response to petitioner s ’ motion arguing petitioners are not entitled to receive attorneys’ fees and costs since petitioners failed to establish

a reasonable basis for their claim. Resp. at 1

- 5

. Respondent “respectfully requests that the [undersigned] exercise her discretion and deny petitioners’ Motion for Attorneys’ Fees and

C osts.” Id. at 6

.

On March 1, 2018

, petitioners filed a reply to respondent’s response arguing they had a reasonable basis to file their petition and lost their reasonable basis when the undersigned commented during the initial status conference that no reasonable basis would be found if petitioner s proceeded. Reply, at 4, 6, 7. Petitioners request an additional attorneys’ fees of $2,702.80. Id. at 7. The total amount of attorneys’ fees and costs requested is now $27,310.56.

This matter is now ripe for adjudication.

DISCUSSION

I. Entitlement to Fees Under the Vaccine Act

a. Legal Standard3

Under the Vaccine Act, a special master or a judge on the U.S. Court of Federal Claims may award fees and costs to an unsuccessful petitioner if “the petition was brought in good faith

and there was a reasonable basis for the claim for which the petition was brought.” 42 U.S.C. §

300aa

- 15(e)(1) ; Sebelius v. Cloer , 133 S. Ct. 1886, 1893 (2013).

“Good faith” is a subjective standard. Hamrick v. Sec’y of HHS , No. 99

- 683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr . Nov. 19, 2007). A petitioner acts in “good faith” if he or she holds an honest belief that a vaccine injury occurred. Turner v. Sec’y of HHS , No. 99

- 544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). P etitioners are “entitled to a

pres umption of good faith.” Grice v. Sec’y of HHS , 36 Fed. Cl. 114, 121 (Fed. Cl. 1996).

“Reasonable basis” is not defined in the Vaccine Act or R ules. It has been determined to be an “objective consideration determined by the totality of the circumstances. ” McKellar v. Sec’y of HHS , 101 Fed. Cl. 297, 303 (Fed. Cl. 2011). Traditionally, special masters have been “quite generous” in finding reasonable basis. Turpin v. Sec’y of HHS , No. 99

- 564V, 2005 WL 1026714, at *2 (Fed. Cl. Spec. Mstr. Feb. 10, 2005); s e e also Austin v. Sec’y of HHS , No. 10

- 362V, 2013 WL 659574, at *8 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“The policy behind the Vaccine Act’s extraordinarily generous provisions authorizing attorney fees and costs in

unsuccessful cases

— ensuring that litigan ts have ready access to competent representation

— militates in favor of a lenient approach to reasonable basis.”). However, “Fee denials are expected to occur. A different construction of the statute would swallow the special master’s

discretion.” Chuisa no v. United States, 116 Fed. Cl. 276, 286 (Fed. Cl. 2014). See also Dews v. Sec'y of HHS , No. 13

- 569V, 2015 WL 1779148 , at *2 (Fed. Cl. Spec. Mstr. Mar. 30, 2015) (in which the undersigned found HPV vaccine did not cause vaccinee’s DSRC cancer, a genetic ally

caused disease, and petitioner was not entitled to attorneys’ fees and costs because she did not have a reasonable basis to bring the petition).

In determining reasonable basis, the court looks “not at the likelihood of success [of a claim] but more t o the feasibility of the claim. ” Turner , 2007 WL 4410030, at *6 (citing Di Roma v. Sec’y of HHS , No. 90

- 3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). Factors to be considered include factual basis, medical support, jurisdictional issues, and the circumstances under which a petition is filed. Turner , 2007 WL 4410030, at *6

– *9.
However, the Federal Circuit has recently clarified in Simmons that “a looming statute of limitations deadline . . . has no bearing on whether there is reas onable factual basis ‘for the claim’ raised in the petition. That is an objective inquiry unrelated to counsel conduct.” Simmons v. Sec’y of HHS , 875 F. 3d 632, 636 (Fed. Cir. 2017).

Moreover, while a petitioner may have a reasonable basis to file a petition, the reasonable basis can be lost as the case develops. In Perreira , the Federal Circuit upheld a special master’s decision awarding attorneys’ fees and costs only up until the hearing began. Perreira v. Sec'y of

HHS , 33 F.3d 1375, 1377 (Fed. Cir. 1994). The special master found that petitioners should have realized that they did not have a reasonable basis to move forward with the case once they reviewed their expert’s opinion prior to the hearing and saw the opinion was unsupported by

medical literature or studies. Id. The Federal Circuit noted that “Congress must not have intended that every claimant . . . collect attorney fees and costs” because the funds that are4

payable under the statute are limited. Id. at 1377.

b. Good faith and reasonable basis

Petitioner s are entitled to a presumption of good faith, and respondent does not contest that the petition was filed in good faith. Grice , 36 Fed. Cl. at 121 . There is no evidence that this petition was brought in bad faith. Therefore, the undersigned finds that the good faith requirement is satisfied.

Prior to t he filing of the petition, c ounsel h ad C.A. ’ s medical records, petitioners ’ affidavits, and an expert D r. Mikovits ’ preliminary review of the case which indicated that she believed she might be able to support causation based on the facts as presented in petitioners ’

affidavit and medical records

. Doc

. 14, at 8, 9, 14; Do c 21, at 3

- 5. Therefore, t he undersigned

finds that t here was a reasonable basis f or petitioners to file the claim

. However, p etitioners lost that reasonable basis on October 24, 2017

, the date on which the undersigned held the in itial

status conference

, during which she found a lack of documentation regarding onset and indicated

no reasonable basis would be f ound if petitioners proceeded. Thus, the undersigned awards reasonable attorneys’ fees and costs up until October 24, 2017. Accordingly, t his results in a deduction of $ 2

, 470.60

.

II. Reas onableness of Requested Attorneys’ Fees and Costs

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 1343, 1348. 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 HHS

, 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera , 515 F. 3d at 1349). 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

HHS , No. 09

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

Once the applicable hourly rate is determined, it is applied to 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 v. Sec’y of HHS , 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1983)). Counsel must submit fee requests that include contemporaneous and specific billing entries indicating the tas k performed, the number of hours expended on the task, and who performed the task. See Savin v. Sec’y of HHS , 85 Fed. Cl. 313, 316

– 18 (Fed. Cl. 2008). It is “well within the special master’s discretion to reduce the hours to a number that, in [her]

exper ience and judgment, [is] reasonable for the work done.” Id. Furthermore, the special master may reduce fees sua sponte , apart from objections raised by respondent and without providing petitioners notice and opportunity to respond. See Sabella v. Sec’y of HHS , 86 Fed. Cl. 201, 208

– 09 (Fed. Cl. 2009). A special master need not engage in a line

- by

- line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of HHS , 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).5

1. Reasonable Hourly Rates

Petitioner s request the following hourly rates:

2015 2016 2017 2018

Clifford Shoemaker $415 $430 $440 $450 Renee Gentry N/A N/A $430 $440

Sabrina Knickelbein N/A $365 $378 $378

T he undersigned finds petitioner s ’ requested hourly rates reasonable except for Ms. Gentry’s hourly rate of $430 for her work performed in 2017. Since Ms. Gentry has been practicing law for approximately 22 years, she may be awarded $358

- $424 for work performed in 2017. The undersigned finds Ms. Gentry belongs at the upper limit of this range, but cannot exceed it. The undersigned awards Ms. Gentry’s hourly rate for her work performed in 2017 at $424. Because Ms. Gentry billed 0.25 hours in 2017, t his results in a deduction of $ 1.50

.

2. Reduction of Billable Hours

a. Administrative Time

Bedrock caselaw states that billing for clerical and other secretarial work is not permitted in the Vaccine Program. Rochester v. United States , 18 Cl .Ct. 379, 387 (1989) (denied an award of fees for time billed by a secretary and found that “[these] services ... should be considered as normal overhead office costs included within the attorneys’ fees rates”); Mostovoy v. Sec’y of

HHS , 2016 WL 720969, at * 5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016).

Petitioners’ counsel’s billing records contain multiple entries that are best characterized

as administrative tasks. For example, Mr. Shoemaker and Ms. Knickelbein billed 0.1 hours for

tasks such as “review notice of appearan ce,” “review ini tial order,” “review [an] order ” after reviewing a one

- page or non

- pdf scheduling order or status confe rence order. Doc

. 14 , at 6 (entries dated 8 /3/2017 and 8/9/2017 ); Id. at 1 5 (entries dated 8 /3/2017 and 8/9/2017 ) ; and Doc 21, at 9 (entries dated 2/2/2018 and 2/5/2018)

. Beyond the fact that this is clerica l work billed at attorneys’ rates, the undersigned cannot imagine how it takes six minutes to enter a date, or even three dates, on one’s calendar. These types of entries are clerical in nature and do not co nstitute billable time. Additionally, Mr. Shoem aker billed a combined 0.9 hours to review and authorize payment for medical records

. Doc

. 1 4, at 7 (entries dated 2/5/2016 and 2/9/2016). Accordingly

such entries will be deducted from the fee aw ard, amounting to a further reduction of $ 332.40

.

b. Vague Entries

The undersigned has previously decreased an award of attorneys’ fees for vagueness. Barry v. Sec’y of HHS , 12

- 39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr . Oct. 25, 2016) (reduced a fee award by 10 percent due to vague billing entries). An application for fees and6

costs must sufficiently detail and explain the time billed so that a special master may determine, from the application and the case file whethe r the amount requested is reasonable. Bell v. Sec’y

of HHS , 18 Cl.Ct. 751, 760 (1989); Rodriguez v. Sec’y of HHS

, 2009 WL 2568468 (Fed. Cl. Spec. Mstr . June 27, 2009). Petitioners bear the burden of documenting the fees and costs

claimed. Id. at *8.

Time records should be sufficiently detailed so that the undersigned is able to determine the reasonableness of the amount of time being spent and the work being perf ormed. Mr.

Shoemaker billed 0.2 hours to “review corr .” Doc

. 14 , at 7 (entries d ated 2 /15/2016 and

2/25/2016 ). Without additional information about what Mr. Shoemaker was reviewing or why, these hours are not compensable. This adjustment results in a further deduction of $ 86.00

.

c. Duplicative and Excessive Entries

Special m asters have previously reduced the fees paid to petitioners due to excessive and duplicative billing. See Ericzon v. Sec’y of HHS , No. 10

- 103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to excessive a nd duplicative billing); Raymo v. Sec’y of HHS , No. 11

- 654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20 percent), mot. for rev. denied , 129 Fed. Cl. 691 (2016). S pecial m asters have previously noted the inefficien cy that results when cases are staffed by multiple individuals and have reduced fees accordingly. See Sabella , 86 Fed. Cl. at

209.

The undersigned finds t hat counsel included entries that are duplicative due to attorneys billing for review of the same order o r e mailing petitioner s the same order. For examples, both Mr. Shoemaker and Ms. Knickelbein billed for emailing petitioner s the undersigned ’ s Order of September 22, 2017. Doc

. 14, at 11 and 16

. In addition to 2 hours of M s. Knickelbein ’ s time

billed for d raftin g a reply to respondent ’ s opposition to petitioner s ’ fees motion

, Mr. Shoemaker billed 0.2 hours for reviewing the draft and M s. Gentry billed 3 .5 hours for work related to revising and editing the d raft , revi e wing billing records, and r eviewing the under signed ’ s order.

Doc

. 2 1 , at 9

. The undersigned will recognize 3 hours of counsel time for writing the reply. Accordingly, this results in a further reduction of $ 1

, 137.80.

Thus, the total amoun t of attorneys’ fees for Shoemaker, Gentry & Knickelbein is reduced by $ 4 ,028.30 and $ 22,426.10 is awarded. The u ndersigned finds the attorneys’ costs reasonable. Therefore, the total amount paid for attorneys’ fees and costs incurred by
Shoemaker, Gentr y & Knickelbein is $ 23,282.26

.

CONCLUSION

T he undersigned finds petitioners had a reasonable basis to file a petition and this reasonable basis continued during the initial period of the prosecution of their case, up until the

f irst status conference held on October 24, 2017

. Accordingly, the court awards:7

a. $438.05 , representing petitioner s ’ personal costs. The award shall be in the form of a check

mad e payable to petitioner s for $ 438.05 ;

b. $ 2 3,282.26 , representing attorneys’ fees and costs. The award shall be in the form of a

check mad e payable jointly to petitioner s and Shoemaker, Gentry & Knickelbein in the

amount of $ 2 3,282.26

.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: March 7, 2018 /s/ Laura D. Millman

Laura D. Millman Special Master

2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party , either separately or jointly, filing a notice renouncing th e right to seek review.