UNPUBLISHED

MINDY MICHAELS ROTH, Special Master.

DECISION ON ATTORNEYS' FEES AND COSTS1

On December 15, 2016, Doris Handler ("Ms. Handler or "Petitioner") filed a petition pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleges that she suffers from Shoulder Injury Related to Vaccine Administration ("SIRVA") and shingles as a result of the influenza ("flu") vaccination she received on September 22, 2015. Petition, ECF No. 1. On February 5, 2019, the parties filed a joint stipulation of dismissal, and on the same day the undersigned issued an Order concluding proceedings pursuant to Vaccine Rule 21(a). ECF No. 44.

On February 6, 2019, Petitioner filed an application for attorneys' fees and costs. ECF No. 45 ("Fees App."). Petitioner requests total attorneys' fees and costs in the amount of $17,609.27 (representing $16,968.60 in attorneys' fees and $640.67 in costs). Fees App at 5. Pursuant to General Order No. 9, Petitioner asserts that she has personally incurred costs of $400.00. Id. Respondent responded to the motion on March 6, 2019, stating "Respondent is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case" and requesting that the undersigned "exercise her discretion and determine a reasonable award for attorneys' fees and costs." Resp't's Resp. at 2-3. ECF No. 51. Petitioner filed a reply on March 6, 2019, reiterating her belief that the request for fees and costs was reasonable. Reply at 1, ECF No. 53.

This matter is now ripe for consideration.

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). Here, although petitioner was not successful in pursuing her claim, the undersigned finds that both elements have been met. First, the undersigned does not doubt that petitioner brought her claim in a good-faith belief that her vaccination played a causal role in her injury. Additionally, the claim possessed sufficient objective support to meet the second half of the reasonable basis test, and Respondent has not challenged the reasonable basis of the claim. Accordingly, a final award of attorneys' fees and costs is proper.

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.

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 petitioner's fee application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

II. Discussion

a. Reasonable Hourly Rate

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)).

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.3

Petitioner requests that her attorneys be compensated at the following rates: for Mr. Mark Krueger, $363.00 per hour for work performed in 2016 and $376.00 per hour for work performed in 2017; for Mr. Andrew Krueger, $200.00 per hour for all work performed; and for Ms. Stephanie Schmitt, $200.00 per hour for all work performed. These rates are all consistent with what Krueger & Hernandez attorneys have been awarded for their work in the Vaccine Program. See Horton v. Sec'y of Health & Human Servs., No. 17-55V, 2018 WL 6253775, at *2 (Fed. Cl. Spec. Mstr. Oct. 23, 2018). Accordingly, no adjustment to the requested rates is necessary.

b. Hours Reasonably Expended

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 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). 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); Guy v. Sec'y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

The undersigned has reviewed the billing entries and finds that a small overall reduction is necessary. The issue is that the attorneys and paralegal who worked on this case appeared to view 0.2 hours as the minimum amount of time to complete any task. While it is understandable that some e-mails and phone calls take longer than others, in the undersigned's experience it is extremely unlikely that all communication took a minimum of 12 minutes to complete. Accordingly, the undersigned and other special masters have consistently reduced fee requests in which counsel and staff billed in minimum increments greater than 0.1 hours. See Butler v. Sec'y of Health & Human Servs., No. 16-1027V, 2019 WL 1716073, at *3 (Fed. Cl. Spec. Mstr. Mar. 20, 2019); Sheridan v. Sec'y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Meadows v. Sec'y of Health & Human Servs., No. 16-861V, 2018 WL 6292565, at *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018).

Accordingly, the undersigned will reduce the amount of attorneys' fees by 5%. This results in a reduction of $848.43. Petitioner is therefore awarded final attorneys' fees of $16,120.17.

c. Reasonable Costs

Like attorneys' fees, a request for reimbursement of attorneys' costs must be reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $640.67 in costs. Fees App. at 5. This amount is comprised of acquiring medical records, mailing costs, and making copies. These costs are typical of Vaccine Program litigation and petitioner has supported them with adequate documentation. Accordingly, petitioner is entitled to the full amount of costs sought, $640.67.

d. Petitioner's Costs

Pursuant to General Order No. 9, Petitioner warrants that she has personally incurred costs in the amount of $400.00 for the Court's filing fee. This cost shall also be fully reimbursed.

III. Conclusion

In accordance with the foregoing, Petitioner's motion for attorneys' fees and costs is GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys' fees and costs as follows:

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.