In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-777V Filed: May 7, 2018
* * * * * * * * * * * * * * * HEATHER CARON, o/b/o and * UNPUBLISHED as Next of Friend of A.C., a Minor, * , * * Petitioner, * v. * Decision on Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * *
Verne E. Paradie, Jr. Esq., Paradie, Sherman, et al., Lewiston, ME, for petitioner. Jennifer L. Reynaud, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Roth, Special Master:
On July 23, 2015, Heather Caron (“petitioner”) filed a petition for compensation on behalf of her minor child, A.C., under the National Vaccine Injury Compensation Program. 2 Petitioner alleges that the Diphtheria-Tetanus-acellular Pertussis, Polio and Haemophilus Type B (“DTaP-IPV/HIB”), Measles-Mumps-Rubella (“MMR”), and Varicella vaccinations A.C. received on August 2, 2012, caused him to suffer from Chronic Recurrent Multifocal Osteomyelitis (“CRMO”), as well as “chronic episodes of acute otitis media, fever, coughing, leg pain, neck pain, and joint pain, and related symptoms and associated symptoms and deficits.” See Petition (“Pet.”), ECF No. 1.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access. 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 Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). An onset hearing was held on July 11, 2016, and the undersigned issued a Ruling on Onset on December 14, 2016. ECF No. 35. Thereafter, on May 15, 2017, petitioner filed a “Request for Ruling on the Record” requesting that the undersigned “issue a decision in favor of [p]etitioner or reconsider the earlier decision regarding onset of A.C.’s symptoms and hold a hearing.” ECF No. 39 at 7. On September 7, 2017, the undersigned denied petitioner’s request for reconsideration and issued a decision dismissing the petition for failure to provide an expert report in compliance with Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005). ECF No. 41. On September 26, 2017, petitioner filed a motion for review of the decision dismissing her claim. ECF No. 42. The United States Court of Federal Claims affirmed the undersigned’s finding of onset and the decision dismissing the petition on January 30, 2018. ECF No. 47.
On April 16, 2018, petitioner filed a Motion for Fees and Costs (“Motion for Fees”), requesting $14,477.00 in attorneys’ fees, and $773.36 in costs, for a total of $15,250.36. ECF No. 51. On April 30, 2018, respondent filed a response to petitioner’s Motion for Fees that contained no specific objection to the amount requested or hours worked, but instead asked that the undersigned exercise her discretion in determining the proper amount to be awarded. ECF No. 52.
I. Applicable Legal Standards
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, 569 U.S. 369, 373 (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).
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, 515 F.3d at 1349. Under this approach, [t]he initial estimate of a reasonable attorney’s fee” 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.
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.” Id. at 1348 (quoting Blum, 465 U.S. at 896 n.11). 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, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum jurisdiction” and “there is a very significant 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 (Fed. Cir. 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
2 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 issued a fee schedule that updates the McCulloch rates to account for inflation in subsequent years. 3
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. The application for fees and costs must “sufficiently detail and explain the time billed so that a special master may determine . . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No. 15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, 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.
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-777V Filed: May 7, 2018
* * * * * * * * * * * * * * * HEATHER CARON, o/b/o and * UNPUBLISHED as Next of Friend of A.C., a Minor, * , * * Petitioner, * v. * Decision on Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * *
Verne E. Paradie, Jr. Esq., Paradie, Sherman, et al., Lewiston, ME, for petitioner. Jennifer L. Reynaud, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Roth, Special Master:
On July 23, 2015, Heather Caron (“petitioner”) filed a petition for compensation on behalf of her minor child, A.C., under the National Vaccine Injury Compensation Program. 2 Petitioner alleges that the Diphtheria-Tetanus-acellular Pertussis, Polio and Haemophilus Type B (“DTaP-IPV/HIB”), Measles-Mumps-Rubella (“MMR”), and Varicella vaccinations A.C. received on August 2, 2012, caused him to suffer from Chronic Recurrent Multifocal Osteomyelitis (“CRMO”), as well as “chronic episodes of acute otitis media, fever, coughing, leg pain, neck pain, and joint pain, and related symptoms and associated symptoms and deficits.” See Petition (“Pet.”), ECF No. 1.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access. 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 Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). An onset hearing was held on July 11, 2016, and the undersigned issued a Ruling on Onset on December 14, 2016. ECF No. 35. Thereafter, on May 15, 2017, petitioner filed a “Request for Ruling on the Record” requesting that the undersigned “issue a decision in favor of [p]etitioner or reconsider the earlier decision regarding onset of A.C.’s symptoms and hold a hearing.” ECF No. 39 at 7. On September 7, 2017, the undersigned denied petitioner’s request for reconsideration and issued a decision dismissing the petition for failure to provide an expert report in compliance with Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005). ECF No. 41. On September 26, 2017, petitioner filed a motion for review of the decision dismissing her claim. ECF No. 42. The United States Court of Federal Claims affirmed the undersigned’s finding of onset and the decision dismissing the petition on January 30, 2018. ECF No. 47.
On April 16, 2018, petitioner filed a Motion for Fees and Costs (“Motion for Fees”), requesting $14,477.00 in attorneys’ fees, and $773.36 in costs, for a total of $15,250.36. ECF No. 51. On April 30, 2018, respondent filed a response to petitioner’s Motion for Fees that contained no specific objection to the amount requested or hours worked, but instead asked that the undersigned exercise her discretion in determining the proper amount to be awarded. ECF No. 52.
I. Applicable Legal Standards
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, 569 U.S. 369, 373 (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).
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, 515 F.3d at 1349. Under this approach, [t]he initial estimate of a reasonable attorney’s fee” 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.
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.” Id. at 1348 (quoting Blum, 465 U.S. at 896 n.11). 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, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum jurisdiction” and “there is a very significant 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 (Fed. Cir. 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
2 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 issued a fee schedule that updates the McCulloch rates to account for inflation in subsequent years. 3
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. The application for fees and costs must “sufficiently detail and explain the time billed so that a special master may determine . . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No. 15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, 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 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).
Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who perform non-attorney-level work are compensated at a rate 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). 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). Finally, some tasks are never compensable. For instance, “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). And clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Non- compensable clerical and secretarial tasks include making travel arrangements, reviewing and paying invoices, setting up meetings, organizing files, scheduling conference calls, and reviewing files for consistency. J.W., 2017 WL 877278, at *3; Barry v. Sec’y of Health & Human Servs., No. 12-039V, 2016 WL 6835542, at *4 (Fed. Cl. Spec. Mstr. Oct. 25, 2016).
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 may reduce the number of hours submitted by a percentage of the amount charged. See Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 728-29 (2011) (affirming special master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Ultimately,
3 This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016, http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.
3 special masters have substantial discretion in awarding fees and costs, 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 & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. See Broekelschen, 102 Fed. Cl. at 729.
II. Discussion
A. Reasonable Rates and Time Expended
Petitioner requests $14,477.00 in attorneys’ fees. ECF No. 51. Upon review of the billing records, the undersigned finds the hourly rates and total amount requested to be reasonable. 4 Moreover, the number of hours expended in this case by petitioner’s counsel appear to be reasonable. Therefore, the undersigned awards the requested attorneys’ fees.
C. Reasonable Costs
Petitioner requests $773.36 in attorneys’ costs. ECF No. 51. The requested costs consist of filing fees, travel expenses, and shipping costs. The undersigned finds petitioner’s requested costs to be reasonable.
III. Total Award Summary
Based on the foregoing, the undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs. Accordingly, the undersigned awards $15,250.36, 5 representing $14,477.00 in attorneys’ fees, and $773.36 in costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Verne E. Paradie, Jr., Esq. The clerk shall enter judgment accordingly. 6
IT IS SO ORDERED. s/ Mindy Michaels Roth Mindy Michaels Roth Special master
4 I have made no determination as to appropriate hourly rates in this matter; I simply conclude that the total sums requested are reasonable and appropriate. 5 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991). 6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.