UNPUBLISHED

MINDY MICHAELS ROTH, Special Master.

DECISION ON ATTORNEYS' FEES AND COSTS1

On November 21, 2013, Kevin Thompson ("Mr. Thompson," or "petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that he developed right brachial plexopathy as a result of receiving an influenza vaccination on November 30, 2012. See Petition ("Pet."), ECF No. 1. On April 27, 2017, petitioner filed a Motion to Dismiss Petition. ECF No. 71. On April 27, 2017, the undersigned dismissed this case for insufficient proof, pursuant to Vaccine Rule 11(a). See Decision, ECF No. 72.

On November 21, 2017 petitioner filed a Motion for Attorneys' Fees and Costs. Motion for Fees, ECF No. 76. Petitioner requests attorneys' fees in the amount of $41,758.30 and attorneys' costs in the amount of $5,515.71, for a total amount of $47,274.01. Id. at 1-2. In accordance with General Order #9, petitioner's counsel represents that petitioner did not incur any out-of-pocket expenses. See Pet. Ex. 25, ECF No. 76-1.

On December 5, 2017, respondent filed a response to petitioners' Motion for Fees. Response, ECF No. 77. Respondent provided no specific objection to the amount requested or hours worked, but instead, "respectfully recommend[ed] that the Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3. This matter is now ripe for decision.

I. Legal Framework

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, 133 S.Ct. 1886, 1891 (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 v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, "an initial estimate of a reasonable attorneys' fees" 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 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. 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). While attorneys may be compensated for non-attorney-level work, the rate must be 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). Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. 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). And "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). Moreover, 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).

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, 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.4 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 Hourly Rate

In this case, the majority of counsel's work is performed in Sarasota, FL. Forum rates have been found to apply to the greater Sarasota area. See Dezern v. Sec'y of Health & Human Servs., No. 13-643V, 2016 WL 6678496 (Fed. Cl. Spec. Mstr. Oct. 14, 2016).

The requested hourly forum rates are consistent with the rates previously found to be reasonable in cases involving petitioner's counsel, Mr. Caldwell. See e.g., DiFazio v. Sec'y of Health & Human Servs., No. 09-530V, 2017 WL 2417322 (Fed. Cl. Spec. Mstr. May 10, 2017). However, petitioner has requested an hourly rate of $150 for Jessica Olins, a law clerk, for work performed in 2017, which is outside of the appropriate McCulloch range of $128 to $148. Pet. Ex. 26 at 14. Ms. Olins' 2017 hourly rate will be reduced to $148, consistent with the higher end of the appropriate range. Further, it appears that paralegal Kelly Parsons may have mistakenly billed a 2014 entry at an hourly rate of $150. Id. at 6. Her rate will be reduced to $135, consistent with her other 2014 billing entries. Accordingly, overall attorneys' fees shall be reduced from $41,758.30 to $41,752.40.

B. Hours Reasonably Expended

Ordinarily, "[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.

Here, 0.3 of the hours billed by Mr. Maglio for travel do not provide any description of work performed during such travel.5 That time will therefore be compensated at one-half of the normal hourly rate. For these reasons, attorneys' fees shall be reduced from $41,752.40 as determined above to $41,707.40.

Moreover, the undersigned finds that a number of the hours billed were "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d at 1521.6 For example, there are billed tasks in which attorneys and/or paralegals performed administrative tasks such as reviewing and paying invoices.7 Additionally, there are instances of duplicative billing.8 Finally, petitioner's counsel billed a total of 14.4 hours from January 10, 2017, to February 9, 2017, for his assistance in preparing a supplemental expert report.9 The undersigned finds this excessive, particularly considering that this was the second supplemental report and third report overall submitted by petitioner's expert, and that this report was less than two pages long. See e.g., Dezern, 2016 WL 6678496, at *7 (reducing fee award due to excessive hours billed for assisting in the preparation of an expert report). Fees for petitioner's counsel have been previously reduced for billing excessive hours in assisting experts. See McGraw v. Sec'y of Health & Human Servs., No. 12-282V, 2017 WL 5662556 (Fed. Cl. Spec. Mstr. Nov. 1, 2017) (denying reconsideration of a reduction in fees related to counsel's review of an expert report); see also Noonan v. Sec'y of Health & Human Servs., No. 13-430V, 2017 WL 4856852 (Fed. Cl. Spec. Mstr. Oct. 2, 2017) (reducing petitioner's fee award by 10% due to excessive billing); Brown v. Sec'y of Health & Human Servs., No. 13-594V, 2017 WL 4768120 (Fed. Cl. Spec. Mstr. Sep. 17, 2017) (reducing petitioner's fee award by 10% due to excessive billing); Bitsui v. Sec'y of Health & Human Servs., No. 11-749, 2017 WL 2856407 (Fed. Cl. Spec. Mstr. June 9, 2017) (reducing petitioner's fee award by 10% due to excessive billing). For these reasons, the undersigned finds that the appropriate amount of attorneys' fees as found above, $41,707.40, should be reduced by 10%. Accordingly, $37,536.66 is awarded in attorneys' fees.

C. Reasonable Costs

Petitioner requested a total of $5,515.71 in attorneys' costs. See Motion for Fees, ECF No. 76. The requested costs consist of $3,125.00 in expert fees, $1,205.00 in costs associated with service of process, and $247.90 in travel costs. Id. The undersigned finds petitioner's requested costs to be reasonable.

III. Total Award Summary

Based on the foregoing, the undersigned awards the total of $43,052.37,10 representing reimbursement for attorneys' fees in the amount of $37,536.66 and costs in the amount of $5,515.71, in the form of a check made payable jointly to petitioner and petitioner's counsel, Franklin J. Caldwell, Esq. The Clerk of the Court is directed to enter judgment in accordance with this Decision.11

IT IS SO ORDERED.