KATHERINE E. OLER, Special Master.
On October 25, 2016, Don Lewis ("Petitioner"), filed a petition for compensation in the National Vaccine Injury Compensation Program ("the Program"),
On October 19, 2017, Petitioner filed a motion for attorneys' fees and costs (AFC Motion), requesting $42,847.60 in attorneys' fees, and $7,686.41 in costs, for a total of $50,534.01. Petitioner's ("Petr's") Application ("App.") dated October 19, 2017, ECF No. 34 at 1-2.
This case was transferred to my docket on November 30, 2017. ECF No. 35. On that same date, Respondent filed a response to Petitioner's AFC motion. See Respondent's Response, dated November 30, 2017, ECF No. 36. Respondent argues that "[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs." Id. at 1. Respondent adds, however, that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Id. at 2. Additionally, he "respectfully recommends that [I] exercise [my] discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
Petitioner filed a reply to Respondent's response on December 5, 2017. ECF No. 38. Petitioner argues (1) that Respondent's position regarding Petitioner's AFC Motion is "overly burdensome on the Court and prejudices Petitioner" (id. at 2); (2) that "Petitioner has met his burden of establishing reasonable fees and costs" (id. at 3); and (3) that his "attorneys' fees should be paid and his case costs reimbursed" (id. at 4). This matter is now ripe for a decision.
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 also Sebelius v. Cloer, 569 U.S. 369, 373 (2013). A petitioner need not prevail on entitlement to receive a fee award, however, as long as the petition was brought in "good faith" and there was a "reasonable basis" for the claim to proceed. §15(e)(1). Respondent does not argue that this case lacks good faith or a reasonable basis. Upon my review of the record, and an examination of the overall circumstances of this case, I also agree that this case was filed in "good faith," and with a "reasonable basis."
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 v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). 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.
Special masters have substantial discretion in awarding fees 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 (2009). Special masters need not engage in a line-by-line analysis of a petitioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
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 at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, 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 attorney's 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 (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)).
Petitioner's counsel of record, Ms. Haskins, performed work on this case from her law firm's Sarasota, Florida office (see Petr's App. at 3), and the billing invoices filed in connection with the present fee request reveal the work she performed on the matter (see generally Ex. 8, ECF No. 34). In a prior case, Special Master Corcoran found attorneys from Ms. Haskin's law firm ("the Maglio Firm") based in Sarasota, Florida, to be entitled to forum rates. See Dezern v. Sec'y of Health & Human Servs., No. 13-643V, 2016 WL 6678496 (Fed. Cl. Spec. Mstr. Oct. 14, 2016). I find Special Master Corcoran's analysis to be well-reasoned and persuasive, and will follow his approach in this instant fees request; thus, forum rates apply in this case.
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 Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and has issued a Fee Schedule for subsequent years.
Accordingly, I find the requested hourly forum rates for Ms. Haskins — i.e., $324.00 for work performed in 2016, and $348.00 for work performed in 2017 (see Ex. 8 at 12) — to be reasonable.
Additionally, twelve paralegals from the Maglio Firm worked on this case (see Ex. 8 at 12); for those paralegals, Petitioner requests a variety of hourly rates ranging from $105.00 to $145.00 (id.). I find those paralegal hourly rates to be reasonable.
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 v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521 (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). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Additionally, "[w]hen case-related work is performed during travel, the time sheets should reflect the work performed and the hours spent performing it." O'Neill v. Sec'y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *7 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (quoting Gruber ex rel. Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 788 (2010)). And "[a]bsent documentation of the work performed by an attorney while he or she was traveling, the attorney will not be compensated at his or her full hourly rate for travel time." Id. Instead, those travel hours will be compensated "at one-half the standard hourly rate." Id.
Ultimately, 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, 102 Fed. Cl. at 728-29 (affirming the special master's reduction of attorney and paralegal hours); see also Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997).
In this case, Mr. Caldwell billed 11 hours for travel in which he did not provide any description of the case-specific work that he performed during his travel.
Based on my review of the billing records submitted with Petitioner's AFC Motion (see generally Ex. 8), I find that a number of the hours billed by the Maglio Firm were "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d at 1521. For example, there are billed tasks in which attorneys and/or paralegals performed administrative tasks such as: opening and setting up client files, filing documents, uploading documents to internal files, maintaining internal calendars, receiving and saving case-related documents, and reviewing and paying invoices.
Accordingly, for the reasons outlined above, I will reduce the total award of attorneys' fees, with the travel time modifications discussed above, by 10%. This results in a reduction of Petitioner's attorneys' fees award of
As outlined above, Petitioner is awarded attorneys' fees in the amount of
Similar to attorneys' fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests $7,686.41 in attorneys' costs, the bulk of which represents costs incurred by his counsel in attempting to secure an expert opinion in this case. See generally Ex. 9. Additional requested costs consist of filing fees, travel costs incurred by counsel in meeting with Petitioner, and service and copying costs associated with prosecuting this claim. Id. After reviewing the costs invoices attached to Petitioner's AFC Motion, I find the requested litigation costs to be reasonable, and will award them in full.
Accordingly, I award
The above-mentioned entries are merely examples and are not exhaustive; they provide a sampling of the non-compensable administrative tasks billed by the Maglio Firm.
The above-mentioned entries are merely examples and are not exhaustive; they provide a sampling of numerous instances in which the billing entries reflect time billed for compensable tasks with non-compensable tasks.
