In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                        Filed: September 9, 2020

* * * * * * * * * * * * *  *
TROY DUVAL,                *                               No. 16-1456V
                           *                               Special Master Sanders
         Petitioner,       *
                           *                               UNPUBLISHED
v.                         *
                           *
SECRETARY OF HEALTH        *                               Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner;
Christine M. Becer, United States Dep’t of Justice, Washington, DC, for Respondent.

                 DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

        On November 4, 2016, Troy Duval (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq.
(2012). Petitioner alleged that the influenza vaccine he received on November 15, 2013, caused
him to develop a shoulder injury related to vaccine administration. A fact hearing was held on
October 10, 2018. On September 30, 2019, the undersigned issued her fact decision dismissing the
petition.




1
  The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling 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 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
        On January 21, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 64
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $32,518.53,
representing $29,953.00 in attorneys’ fees, $2,446.73 in attorneys’ costs, and $118.80 in costs
personally incurred by Petitioner. Fees App. at 4. Respondent responded to the motion on January
30, 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. 65.
Petitioner did not file a reply thereafter.

        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., 

, 1348 (Fed.
Cir. 2008). This is a two-step process.

determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’”

(quoting Blum v. Stenson, 

, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 

, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 

, 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., 

, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” 

(quoting Hensley v. Eckerhart, 

, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See 

. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.”

n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable.

reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 

, 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., 

, 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., 

, 484 (1991), rev'd on other grounds and aff'd in relevant
part, 

(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.” 

.

       a.      Hourly Rate

        The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 

, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 

(Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court 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 the following hourly rates for the work of his counsel: for Mr. Richard
Gage, $311.00 per hour for work performed in 2016, $318.00 per hour for work performed in
2017, $326.00 per hour for work performed in 2018, $339.00 per hour for work performed in 2019,
and $350.00 per hour for work performed in 2020; and for Ms. Kristen Blume, $251.00 per hour
for work performed in 2016, $260.00 per hour for work performed in 2017, $270.00 per hour for
work performed in 2018; and $338.00 per hour for work performed in 2019.

        Mr. Gage’s requested hourly rates are reasonable. However, Ms. Blume’s hourly rates
exceed what she has consistently been awarded for her work in 2017 and 2018. See, e.g., Williams
v. Sec’y of Health & Human Servs., No. 15-1224V, 

, at *2 (Fed. Cl. Spec. Mstr.
Dec. 2, 2019); Ellis v. Sec’y of Health & Human Servs., No. 13-336V, 

, at *7
(Fed. Cl. Spec. Mstr. Jun. 24, 2019). The question of what Ms. Blume should be awarded for 2017
and 2018 is well-settled by this Court, and the undersigned shall compensate her time for those
years at $251.00 per hour.

       Application of these rates results in a reduction of $10.20.

       b. Reasonable Number of Hours

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

. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” 

(quoting Hensley v.
Eckerhart, 

, 434 (1983)).

        After reviewing the billing records, the undersigned finds that counsel included entries that
are duplicative and excessive due to attorneys and paralegals billing for reviewing the same orders
and attending the same conferences/office meetings. Upon review, a reasonable reduction for these
hours is $400.00 Petitioner is therefore awarded final attorneys’ fees of $29,542.80.

        c. Attorney Costs



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, 

.
        Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 

, 34 (Fed. Cl. 1992). Petitioner requests
a total of $2,446.73 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, and costs associated with attending the fact hearing in Milwaukee, Wisconsin.
Fees App. at 35-38. Petitioner has provided adequate documentation of all these expenses and they
appear reasonable for the work performed in this case. Petitioner is therefore awarded the full
amount of costs sought.

       d. Petitioner’s Costs

       Pursuant to General Order No. 9, Petitioner’s counsel warrants that he “did attempt to
contact Petitioner regarding his costs. However, the Petitioner has not responded to any of the
undersigned’s attempts. To the best of the undersigned’s knowledge Petitioner only has travel
expenses for his Hearing on October 10, 2018, totaling $118.80.” Fees App at 58. This cost is for
mileage incurred to attend the hearing. The undersigned finds the cost reasonable and shall
reimburse it.

       II.     Conclusion

        In accordance with the Vaccine Act, 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 her counsel as follows:

 Attorneys’ Fees Requested                                           $29,952.00
 (Reduction to Fees)                                                 - ($410.20)
 Total Attorneys’ Fees Awarded                                       $29,542.80

 Attorneys’ Costs Requested                                          $2,446.73
 (Reduction of Costs)                                                    -
 Total Attorneys’ Costs Awarded                                      $2,446.73

 Total Attorneys’ Fees and Costs                                     $31,989.53

 Petitioner’s Costs                                                   $118.80

 Total Amount Awarded                                                $32,108.33


       Accordingly, the undersigned awards the following:

       1) a lump sum in the amount of $31,989.53, representing reimbursement for
          Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner
          and Petitioner’s counsel, Mr. Richard Gage; and

       2) a lump sum in the amount of $118.80, 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 is directed to enter judgment herewith.4

                IT IS SO ORDERED.

                                                         s/Herbrina D. Sanders
                                                         Herbrina D. Sanders
                                                         Special Master




4
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.