CHARLES F. LETTOW, Judge.
Kevin and Heather Raymo, acting on behalf of their minor child, H.T.R., and through their attorneys, request that this court review the chief special master's decision awarding attorneys' fees and costs. See Pet'rs' Mem. of Objs. in Support of Mot. for Review ("Pet'rs' Mem."), ECF No. 125-1. The case was initiated on October 11, 2011, when Kevin and Heather Raymo filed a petition on behalf of H.T.R., alleging that H.T.R. developed transverse myelitis as a result of certain vaccines she received. Raymo v. Sec'y of Health & Human Servs., No. 11-654V, slip op. at 1-2 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) ("Fees Decision"). On February 24, 2014, then-Chief Special Master Vowell ruled that petitioners were entitled to compensation for H.T.R.'s injuries. Raymo v. Sec'y of Health & Human Servs., No. 11-654V, 2014 WL 1092274 (Fed. Cl. Spec. Mstr. Feb. 24, 2014).
On July 15, 2016, Chief Special Master Dorsey
Petitioners, Kevin and Heather Raymo, are the legal representatives of their minor daughter, H.T.R. Fees Decision at 1. Petitioners allege that H.T.R. developed transverse myelitis due to her receipt in October 2010 of vaccinations for human papillomavirus virus, meningococcus, hepatitis A, diphtheria, tetanus and pertussis. Raymo, 2014 WL 1092274, at *1. H.T.R. was eleven years old at the time of the vaccinations. Id. at *2. As a result, H.T.R. is completely paralyzed from the waist down. Id. at *2, *5.
Petitioners filed this suit on October 11, 2011, pursuant to the National Vaccine Injury Compensation Program. Fees Decision at 1.
On March 4, 2016, petitioners requested $532,976.90 in attorneys' fees and $195,724.50 in costs, for a total of $728,701.40. Pet'rs' Mot. for Fees and Costs (Mar. 4, 2016), ECF No. 107.
On October 6, 2016, the court remanded the case to Chief Special Master Dorsey for the limited purpose of ruling on petitioners' motion for reconsideration. See Order of October 6, 2016, ECF No. 119. Petitioners' motion for reconsideration related solely to the costs for petitioners' economist, Malcolm M. Dienes, LLC. See Pet'rs' Mot. for Recons. Chief Special Master Dorsey granted the motion, which resulted in petitioners receiving an additional $14,144.50 in costs for Dienes, LLC. See Order Granting Pet'rs' Mot. for Recons. Chief Special Master Dorsey issued a new decision on November 2, 2016 that awarded petitioners $368,953.81, comprised of $269,358.35 in attorneys' fees and $99,595.46 in costs. Fees Decision at 32-33. Petitioners filed a motion for review of that decision on November 10, 2016. Pet'rs' Mem. The government filed its response to petitioners' motion for review on December 8, 2016. Resp't's Resp. to Mot. for Review ("Resp't's Opp'n"), ECF No. 126.
The chief special master relied upon the lodestar approach to determine reasonable attorneys' fees. Fees Decision at 5 (citing Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008)). Under the lodestar approach, the court or special master begins by "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Avera, 515 F.3d at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Next, the court or special master "may then make an upward or downward departure to the fee award based on other specific findings." Id. at 1348. Here, the chief special master applied local Louisiana and Arkansas billing rates, rather than Washington, D.C. forum rates, to determine the attorneys' reasonable hourly rates. Fees Decision at 6-7. Though the forum rate typically controls, in this instance the chief special master applied local rates under the so-called Davis County exception because nearly all of the legal work occurred in Louisiana and Arkansas, and the chief special master found a "very significant" difference between local and forum rates. Id. (applying Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). To determine reasonable local attorneys' rates in Louisiana, the chief special master looked to Mooney v. Sec'y of Health & Human Servs., No. 05-266V, 2014 WL 7715158 (Fed. Cl. Spec. Mstr. Dec. 29, 2014), a vaccine case awarding hourly attorneys' rates in Louisiana,
Three law firms participated in the case, Andry Law Group, Domengeaux Wright, and Nixon & Light. Fees Decision at 6. Petitioners requested attorneys' fees for a total of five attorneys, as well as fees for two paralegals. Id. at 6-12.
Using this framework, the chief special master allowed a $325 hourly rate for attorney Jonathan B. Andry and a $200 hourly rate for attorney Michelle Purchner Cumberland of Andry Law Group. Fees Decision at 10.
In addition to establishing reasonable hourly rates, the chief special master also reduced the number of hours requested by the attorneys.
First, the chief special master did not allow attorneys' fees for administrative work. Fees Decision at 12-13 (citing Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Mostovoy v. Sec'y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016)). In reviewing the requested hours for petitioners' attorneys, the chief special master found numerous instances of administrative work. For example, Mr. Andry of Andry Law Group billed an hour "for correspondence with respondent's counsel about scheduling a conference," and Ms. Cumberland and Ms. Lobrano of Andry Law Group repeatedly billed for tasks related to scheduling or coordinating travel. Id. at 13-14. Additionally, the chief special master found that Mr. Wright, Mr. Quackenbos, and Ms. Pelletier of Domengeaux Wright billed for tasks such as reviewing a letter to excuse H.T.R. from school, scheduling a status conference, and scheduling trips. Id. at 15-16. Accordingly, the chief special master reduced Mr. Andry's time by 20.05 hours, Ms. Cumberland's time by 22.45 hours, and Ms. Lobrano's time by 13.80 hours. Id. at 14. The chief special master also reduced Mr. Wright's time by 7.60 hours, Mr. Quackenbos' time by 1.30 hours, and Ms. Pelletier's time by 1.50 hours. Id. at 16.
Second, the chief special master allowed attorneys' fees for paralegal-level work, but only at a paralegal rate. Fees Decision at 13 (citing Doe ex rel. Estate of Doe v. Sec'y of Health and Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (in turn citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989))). For example, she found that Mr. Andry and Ms. Cumberland of Andry Law Group billed for time spent filing medical records and exhibits, as well as organizing binders. Id. at 14-15. Mr. Wright of Domengeaux Wright billed for time spent reviewing an e-mail from Andry Law Group regarding preparations and arrangements with the court for an upcoming hearing, as well as reviewing and forwarding an e-mail to co-counsel. Id. at 16. Accordingly, the chief special master only allowed a $100 paralegal hourly rate for 6 hours expended by Mr. Andry, 41.50 hours by Ms. Cumberland, and 0.40 hours by Mr. Wright. Id. at 15-16.
Third, the chief special master did not allow attorneys' fees related to admission to the United States Court of Federal Claims Bar. Fees Decision at 16 (citing Estate of Oswalt v. Sec'y of Health & Human Servs., No. 03-2153V, 2011 WL 2149932 (Fed. Cl. Spec. Mstr. May 2, 2011); Ceballos ex rel. Ceballos v. Sec'y of Health & Human Servs., No. 99-97V, 2004 WL 784910 (Fed. Cl. Spec. Mstr. Mar. 25, 2004); Velting v. Sec'y of Health & Human Servs., No. 90-1432V, 1996 WL 937626 (Fed. Cl. Spec. Mstr. Sept. 24, 1996)). As a result, the chief special master reduced Mr. Andry's time by 3.60 hours, and Ms. Lobrano's time by 11.06 hours. Id. at 17.
Fourth, for time spent traveling, the chief special master reduced petitioners' attorneys' hourly rates by 50 percent. Fees Decision at 17 (citing Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. July 27, 2009), review denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir. 2011); Carter v. Sec'y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877 (Fed. Cl. Spec. Mstr. July 13, 2007); Scoutto v. Sec'y of Health & Human Servs., No. 90-3576V, 1997 WL 588954 (Fed. Cl. Spec. Mstr. Sept. 5, 1997)). Because petitioners' attorneys gave "no indication" that they performed legal work while traveling, the chief special master reduced the attorneys' requested fees during travel by 50 percent. Id.
Finally, the chief special master did not allow attorneys' fees for time spent researching civil remedies, Fees Decision at 18 (citing 42 U.S.C. § 300aa-15(e)(1)(A), (B); Krause v. Sec'y of Health & Human Servs., No. 01-93V, 2012 WL 4477431 (Fed. Cl. Spec. Mstr. June 20, 2012)), or time spent learning fundamental legal concepts about the Vaccine Program, id. (citing Matthews v. Sec'y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016); Calise v. Sec'y of Health & Human Servs., No. 08-865V, 2011 WL 2444810, at *5 (Fed. Cl. Spec. Mstr. June 13, 2011); Carter, 2007 WL 2241877, at *5). In evaluating the attorneys' fees requested, the chief special master found instances of billing related to civil remedies or fundamental concepts about the Vaccine Program. Id. at 18-20. For example, Mr. Andry and Ms. Cumberland of Andry Law Group billed for research related to filing a claim in Arkansas and learning about proper procedure in vaccine petitions. Id. at 18-19. Similarly, Mr. Wright and Mr. Quackenbos billed for research related to an Arkansas claim and "jurisprudence regarding [the] [V]accine [A]ct and rights of litigants." Id. at 19-20. Accordingly, the chief special master reduced Mr. Andry's time by 28.30 hours, Ms. Cumberland's time by 23.70 hours, Mr. Wright's time by 3.80 hours, and Mr. Quackenbos' time by 5.90 hours. Id. at 19-20.
In addition to reducing the number of billable hours, the chief special master determined that excessive and duplicative billing warranted a 40 percent reduction in fees requested by Andry Law Group, and a 20 percent reduction in fees requested by Domengeaux Wright. Fees Decision at 20-24. In explaining her decision, the chief special master noted concerns about billing by Andry Law Group, including: a single attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intraoffice communications, attorneys billing for excessive time, and attorneys entering erroneous billing entries. Id. at 21-23. The chief special master also noted her view that attorneys with Domengeaux Wright had billed excessively for interoffice communications between Domengeaux Wright and the Andry Law Group, and that the attorneys had billed excessively for intrafirm communications and for work that was also performed by Andry Law Group. Id. at 23-24.
First, in addressing costs, the chief special master only allowed petitioners to recover for costs related to petitioners' expert Dr. Marcel Kinsbourne at $400 per hour, rather than the requested $500 per hour. Fees Decision at 24-26.
Second, the chief special master did not allow petitioners to recover for any costs related to petitioners' expert Dr. Daniel Becker, on the grounds that Dr. Becker's bills were not sufficiently specific, he failed to provide any records for certain fees, he had been found by a preponderance of the evidence to have plagiarized his expert report, and his opinion was not relied upon by the Chief Special Master Vowell in making a determination in the case. See Fees Decision at 26-28; Raymo, 2014 WL 1092274, at *13-14.
Third, the chief special master reduced the requested costs for petitioners' life care planners by 50 percent. Fees Decision at 28-29. The chief special master determined that the billing statements for the life care planners failed to adequately explain the hours spent on the case, the rate charged, or the work performed. Id. at 28. Additionally, the chief special master found the hourly rates requested, which were as high as $825 per hour for one planner and $750 per hour for another, to be excessive. Id. at 28-29.
Fourth, the chief special master awarded petitioners $19,892, the full amount requested, in costs for petitioners' economist, Malcolm M. Dienes, LLC. Fees Decision at 29-30. The chief special master had initially declined to award $14,144.50 of those costs due to lack of billing documentation, but petitioners later provided sufficient supplemental documentation with their motion for reconsideration, after which the chief special master granted the full amount of the costs sought. Order Granting Pet'rs' Mot. for Recons.
Fifth, the chief special master did not grant $250 in requested costs for a nurse consultant due to lack of documentation, and also reduced the nurse consultant's hourly rate for travel by 50 percent. Fees Decision at 30.
Sixth, the chief special master did not allow a requested $36.50 in medical bills due to lack of documentation. Fees Decision at 30-31.
Seventh, the chief special master found petitioners' requested travel expenses to be excessive. Fees Decision at 31. Specifically, the chief special master reduced petitioners' requested costs for a charter flight and transportation by "Little Rock Limousine" by 50 percent. Id.
Eighth, the chief special master did not allow compensation for expenses related to an "Am. Medical Association Subscription" and a certificate of good standing from the Supreme Court of Louisiana. Fees Decision at 31 (citing Rodriguez, 2009 WL 2568468, at *23; Ceballos, 2004 WL 784910).
Finally, the chief special master did not award any of the $29,554.58 petitioners requested for the interest accumulated on loans that Heather Raymo and Domengeaux Wright jointly obtained to finance the case. Fees Decision at 31.
Petitioners' motion for review challenges several of the chief special master's determinations regarding the award of fees and costs. First, petitioners contest the attorneys' fees awarded by the chief special master. Petitioners argue that Mr. Wright should have been compensated at $425 per hour, not $325 per hour, to properly reflect his fifty-seven years of legal experience and reputation in the legal community. Pet'rs' Mem. at 11-12.
Overall, petitioners argue that Chief Special Master Dorsey should not be afforded the discretion or deference traditionally afforded to a special master in determinations of fees because Chief Special Master Dorsey was not assigned to the case during the proceedings on entitlement and was assigned to preside only after the parties had reached a settlement on compensation. Hr'g Tr. 7:19 to 9:2 (Sept. 30, 2016). The government responds by asserting that the chief special master properly considered all relevant factors in reaching a reasonable attorneys' fees and costs determination, and that the decision should be affirmed. Resp't's Opp'n at 1-2.
This court has jurisdiction to review a chief special master's decision under the Vaccine Act and may take one of the following actions upon review of the decision:
42 U.S.C. § 300aa-12(e)(2); see Rehn v. Sec'y of Health & Human Servs., 126 Fed. Cl. 86, 91 (2016).
A special master's determinations of law are reviewed de novo, findings of fact are reviewed for clear error, and discretionary rulings are reviewed for abuse of discretion. Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351, 1354-55 (Fed. Cir. 2011) (citations omitted). The award or denial of attorneys' fees and costs is a discretionary ruling that is reviewed under the abuse of discretion standard. Saxton ex rel. Saxton v. Sec'y of Dep't of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); Graham v. Sec'y of Health & Human Servs., 124 Fed. Cl. 574, 578 (2015) (citations omitted). This court will only find an abuse of discretion when, as set out by the Federal Circuit in other contexts, the special master's decision "(1) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on which the [special master] could rationally base [his] decision." Davis v. Sec'y of Health & Human Servs., 105 Fed. Cl. 627, 633 (2012) (quoting Ninestar Tech. Co. v. International Trade Comm'n, 667 F.3d 1373, 1379 (Fed. Cir. 2012)) (alterations in original).
This deferential standard "is not a rubber stamp." Davis, 105 Fed. Cl. at 633 (citations omitted). The special master must provide sufficient findings and analysis to ensure that a reviewing court can adequately determine whether an abuse of discretion has occurred. Caves v. Sec'y of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013) (citations omitted). If, however, "the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate." Hall, 640 F.3d at 1355 (quoting Hines v. Sec'y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)). Additionally, a special master is permitted to rely on his or her own experiences within the Vaccine Program when awarding reasonable attorneys' fees and costs. Saxton, 3 F.3d at 1521; Caves, 111 Fed. Cl. at 779 (citations omitted).
The Vaccine Act was enacted to implement a "no-fault compensation program" that would "work faster and with greater ease than the civil tort system." Bruesewitz v. Wyeth LLC, 562 U.S. 223, 228 (2011) (quoting Shalala v. Whitecotton, 514 U.S. 268, 269 (1995)). The Act prohibits attorneys from charging any fee for services in connection with a vaccine injury petition. Sebelius v. Cloer, ___U.S. ___, ____, 133 S.Ct. 1886, 1891 (2013) (citing 42 U.S.C. § 300aa-15(e)(3)). Instead, the special master or court awards attorneys' fees and costs, and the award is paid from the federal vaccine trust fund. 42 U.S.C. § 300aa-15(e)(1), (f)(4), (i)(2); Rehn, 126 Fed. Cl. at 91. If a petitioner prevails under the Act, the petitioner is automatically entitled to "reasonable attorneys' fees" and "other costs." 42 U.S.C. § 300aa-15(e)(1)(A), (B); Davis, 105 Fed. Cl. at 634. If the petitioner loses, the presiding special master may award reasonable attorneys' fees and costs if the petition was brought in good faith and upon a reasonable basis. Cloer v. Sec'y of Health & Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012), aff'd sub nom. Sebelius v. Cloer, ___ U.S. ____, 133 S.Ct. 1886; Rehn, 126 Fed. Cl. at 91 (quoting 42 U.S.C. § 300aa-15(e)(1)).
Petitioners bear the burden of showing that the requested attorneys' fees and costs are reasonable. Caves, 111 Fed. Cl. at 782; Sabella v. Sec'y of Dep't of Health & Human Servs., 86 Fed. Cl. 201, 215 (2009). As a general rule, "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Morse v. Sec'y of Health & Human Servs., 93 Fed. Cl. 780, 790 (2010) (quoting Saxton, 3 F.3d at 1521) (emphasis in original).
The most senior attorney for petitioners, Mr. Bob F. Wright, had over 50 years of experience in legal practice and litigation but no prior work on vaccine cases. The chief special master began with a baseline rate of $275 per hour for an attorney with fifteen years of experience, as set forth in Mooney, 2014 WL 7715158, at *9, and then increased that rate by $50 per hour to reflect Mr. Wright's additional experience, per the guidelines set forth in McCulloch, 2015 WL 5634323, at *10. Fees Decision at 10-11.
Petitioners argue that the chief special master failed to consider two of the McCulloch factors in determining an hourly rate for Mr. Wright: overall legal experience and reputation in the community. Pet'rs' Mem. at 11-12. Although McCulloch posited a framework based upon categorizing attorneys based on years of legal experience, the special master in McCulloch also noted that an attorney's "skill, experience, and reputation" are relevant to the analysis. 2015 WL 5634323, at *13 (citing Avera, 515 F.3d at 1348). Petitioners argue that Mr. Wright's fifty-seven years of legal experience and strong reputation in the community warrant an hourly rate of $425, rather than $325. Pet'rs' Mem. at 11-12.
Here, the chief special master did consider Mr. Wright's legal experience, skill level, and reputation in determining a reasonable hourly rate. While acknowledging Mr. Wright's extensive legal experience, she noted that the case "appear[ed]" to be Mr. Wright's first in the Vaccine Program, and thus found it "difficult to determine [Mr. Wright's] reputation and skill level as compared to other petitioners in the [Vaccine] Program." Fees Decision at 11. Regardless of Mr. Wright's activities or expertise in the legal community at large, Mr. Wright appeared to lack the experience, reputation, and skill in the realm of vaccine petitions. In short, the chief special master increased Mr. Wright's hourly rate from a baseline of $275 to reflect his extensive general experience, but limited the increase to $50 because Mr. Wright had no prior vaccine-specific experience. Thus, the chief special master considered all relevant factors and adequately explained the basis for the $325 hourly rate. The chief special master did not abuse her discretion.
The chief special master performed a detailed analysis in excluding, reducing, and reclassifying attorneys' fees related to administrative and paralegal-level work, admission to the United States Court of Federal Claims Bar, travel time, research on civil remedies, and research regarding fundamental legal concepts about the Vaccine Program. See Fees Decision at 12-20. Petitioners, however, argue that the requested attorneys' fees are justified because the case was "complex" and "heavily litigated." Pet'rs' Mem. at 6. In support of this position, petitioners note that in the Vaccine Program, an attorney is required to "prepare his case as if every factual and legal issue will be contested, regardless of how straightforward or uncontested the case may appear with hindsight." Id. at 8 (quoting Holton ex rel. Holton v. Sec'y of Health & Human Servs., 24 Cl. Ct. 391, 398 (1991)). Additionally, petitioners assert that a firm "must have discretion in the way it builds and presents its case[]" and that an evaluation of the hours spent on the case "should not be overly mechanical." Id. (quoting McCulloch, 2015 WL 5634323, at *22).
These arguments by petitioners related to advocacy and attorney discretion do not directly address the reasoning underlying the chief special master's decision to exclude or reclassify attorneys' hours. For example, the chief special master explained that secretarial and clerical tasks, such as arranging travel plans, scheduling meetings, or reviewing invoices, are not compensable in the Vaccine Program. See Rochester, 18 Cl. Ct. at 387; Mostovoy, 2016 WL 720969, at *5. She examined petitioners' requested attorneys' hours and noted each billing entry that was secretarial or clerical in nature. Fees Decision at 13-16. The chief special master performed a similarly detailed analysis with supporting case law in reducing attorneys' fees for paralegal-level work, admission to the United States Court of Federal Claims Bar, travel time, research on civil remedies, and research on fundamental concepts about the Vaccine Program. Id. at 12-20.
Although petitioners have an obligation to diligently prepare a vaccine petition and have discretion in how to present support for the petition, diligence and discretion do not allow petitioners to recover fees for hours that are not recoverable or not fully compensable at attorney-level rates under the Vaccine Program. Because the chief special master presented specific findings with sufficient explanations, the chief special master did not abuse her discretion in this regard.
A special master need not award attorneys' fees for "hours that are excessive, redundant, or otherwise unnecessary." Valdes v. Sec'y of Health & Human Servs., 89 Fed. Cl. 415, 424-25 (2009) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). In evaluating a fee request, a special master is permitted to reduce attorneys' hours found to be excessive by a percentage; a "line-by-line" determination is not required. Saxton, 3 F.3d at 1518-19; Sabella, 86 Fed. Cl. at 206 (citations omitted).
Even so, percentage reductions "are subject to heightened scrutiny." Guerrero v. Sec'y of Health & Human Servs., 120 Fed. Cl. 474, 481-82 (2015) (quoting International Rectifier Corp. v. Samsung Elecs. Co., 424 F.3d 1235, 1239 (Fed. Cir. 2005)). The special master must provide a "concise but clear" explanation as to why the fee reduction is justified. International Rectifier Corp., 424 F.3d at 1239 (quoting Hensley, 461 U.S. at 437); Broekelschen v. Sec'y of Health & Human Servs., No. 07-137V, 2008 WL 5456319, at *6 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (citations omitted). But in providing this explanation, the special master "is not required to explain how many hours are appropriate for any given task." Broekelschen, 2008 WL 5456319, at *6 (citations omitted).
Here, petitioners argue that the chief special master unreasonably reduced Andry Law Group's fees by 40 percent and Domengeaux Wright's fees by 20 percent. Pet'rs' Mem. at 9-10. Petitioners contend that the chief special master failed to recognize the need for multiple attorneys, relying primarily on Holton, 24 Cl. Ct. 391. Pet'rs' Mem. at 9-10. In Holton, the special master had reduced the hours of one attorney by 50 percent and a second attorney by 25 percent after finding "substantial duplication of effort" and excessive hours. 24 Cl. Ct. at 394. Upon review, the Court of Federal Claims vacated the decision and found the special master's percentage reduction to be arbitrary, reasoning:
Id. at 396-97.
The decision in Holton, however, is distinguishable from the chief special master's decision here. In Holton, the fees at issue related to a lead attorney and his associate. 24 Cl. Ct. at 394. In vacating the special master's judgment, the court stated that it was "reasonable for an experienced private practitioner to choose to share the various tasks involved in litigation with an associate." Id. at 397. Furthermore, the court found that the special master unreasonably deemed specific billing entries problematic. Id. (holding that the special master should not criticize an attorney for reviewing every case document or exclude reasonable work performed merely because the work did not result in a material contribution to the case).
In contrast, the chief special master here did not reduce attorneys' fees simply because multiple law firms and attorneys participated in the case. Instead, she found many of the specific billing entries unreasonable. See Fees Decision at 21-24. And, unlike in Holton, the chief special master did not criticize petitioners' attorneys for reviewing every document or performing work that did not ultimately contribute to the case. Rather, she found numerous and specific entries of unreasonably duplicative or excessive billing, such as: an attorney billing for a single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing excessively for intraoffice communications, attorneys billing excessive hours, attorneys entering erroneous billing entries, attorneys billing excessively for interoffice communications between Domengeaux Wright and Andry Law Group, and attorneys of Domengeaux Wright billing for work that was performed by Andry Law Group. See id.
For example, the chief special master found that on one day, Ms. Cumberland of Andry Law Group billed for work related to a status conference, then billed a second time for that same work. Fees Decision at 21. In another example, Mr. Andry and Ms. Cumberland both entered identical billing information for a variety of tasks, notably entering the same description "word-for-word. . . despite the number and variety of tasks performed." Id. at 21-22. The chief special master also found that, among other problematic billing entries, attorneys billed twice for conversations between two attorneys within the same firm, billed twice for discussions between Andry Law Group and Domengeaux Wright, billed twice for simple tasks, and billed for a review of e-mail exchanges between the two law firms. Id. at 21-24. Although it was reasonable to employ multiple attorneys, it was not reasonable for senior attorneys to bill for redundant work or extensive communications. See id. at 24.
Based upon the many duplicative or excessive billing entries, the chief special master determined that a percentage reduction of fees was justified. Fees Decision at 20, 23-24. This methodology has been approved in prior vaccine cases. See Sabella, 86 Fed. Cl. at 214-15 (affirming the special master's reduction of attorneys' fees due to overstaffing and duplicative billing, and rejecting petitioner's argument that the special master failed to appreciate "the way cases are handled in the real world of civil litigation"); Hines ex rel. Sevier v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 754-55 (1991) (affirming the special master's reduction of attorney hours because, despite the complexity of the case, the attorneys duplicated work and billed for an unreasonable number of hours); Mostovoy, 2016 WL 720969, at *5-6 (holding that an attorney could not recover any fee for certain work performed because, in part, the time billed and types of entries appeared excessive); Austin v. Sec'y of Health & Human Servs., No. 10-362V, 2013 WL 659574, at *14 (Fed. Cl. Spec. Mstr. Jan 31, 2013) (reducing attorneys' fees due to "excessive interoffice communications"); Soto v. Sec'y of Health & Human Servs., No. 09-897V, 2011 WL 2269423, at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011) (reducing attorneys' fees due to excessive intrafirm communications, duplicative work, and unnecessary meetings); Carcamo v. Sec'y of Health & Human Servs., No. 07-483V, 2011 WL 2413345, at *7 (Fed. Cl. Spec. Mstr. May 20, 2011) (reducing the attorneys' number of hours where two attorneys both unreasonably billed for the same meetings with petitioner and with each other). Even in a case where a special master's reduction of fees was vacated, this court has noted that reductions will be upheld when supported by specific findings. See Guerrero, 120 Fed. Cl. at 481-82 (holding that the special master failed to adequately explain the reduction of fees, but also discussing cases where percentage reductions were properly applied based upon a reasoned explanation and specific findings).
Here, the chief special master provided an explicit, detailed explanation as to why a reduction of fees was appropriate, and supported that decision with specific findings. Thus, the chief special master did not abuse her discretion in reducing Andry Law Group's fees by 40 percent and Domengeaux Wright's fees by 20 percent.
Petitioners' challenge the chief special master's award of $400 per hour for the work of medical expert Dr. Kinsbourne, given that Dr. Kinsbourne has received a $500 hourly rate in prior vaccine cases. See Pet'rs' Mem. at 12-13; Simon, 2008 WL 623833, at *6-8; Adams v. Sec'y of Health & Human Servs., No. 01-267V, 2008 WL 2221852, at *1-2 (Fed. Cl. Spec. Mstr. Apr. 30, 2008). Petitioners also assert that $500 per hour is reasonable because "Dr. Kinsbourne's work supplied the grounds for then-Chief Special Master Vowell's entitlement finding." Pet'rs' Mem. at 12; see also Raymo, 2014 WL 1092274, at *18-23.
Petitioners' arguments, however, fail to address the reasoning underlying the chief special master's award. The chief special master noted that while Dr. Kinsbourne previously received $500 per hour in certain vaccine cases, he also received less than $500 per hour in others. See, e.g., Bhuiyan v. Sec'y of Health & Human Servs., No. 05-1269V, 2015 WL 2174208, at *4-5 (Fed. Cl. Spec. Mstr. Apr. 16, 2015); Faoro, 2014 WL 5654330, at *3-4. The chief special master went on explicitly to distinguish the case at hand from Simon, 2008 WL 623833, the leading precedent for the larger hourly rate. Dr. Kinsbourne was experienced in testifying about the alleged injuries in Simon and that allowed him to lend his expertise more efficiently, whereas former Chief Special Master Vowell found in this case that Dr. Kinsbourne was "not an ideal expert witness" because, in part, he did not treat, research, teach, or write about the injuries at issue. Fees Decision at 25 (citing Raymo, 2014 WL 1092274, at *18); see also Faoro, 2014 WL 5654330, at *3-4 (distinguishing Dr. Kinsbourne's contributions in the case from his contributions in Simon to hold that a $500 hourly rate was unreasonable in Faoro). As a result, Dr. Kinsbourne did not provide his expertise as efficiently as compared to his contributions in Simon, and thus did not warrant a $500 hourly rate. See Fees Decision at 25-26.
Attorneys in vaccine cases have an obligation to "monitor the expert's overall fees to ensure that the fees remain reasonable." Caves, 111 Fed. Cl. at 781 (internal quotation marks and citations omitted). "A special master can decline to award compensation to an expert if the petitioner failed to provide a sufficient explanation of the expert's qualifications or the work that the expert performed." O'Neill v. Sec'y of Health & Human Servs., No. 08-243V, 2015 WL 2399211, at *15 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (citations omitted).
Furthermore, petitioners bear the burden of showing that the costs expended were reasonable. Caves, 111 Fed. Cl. at 782. In meeting this burden, petitioners must provide "reasonably specific documentation" to support the costs requested. Ceballos, 2004 WL 784910, at *13 (quoting Community Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1146 (Fed. Cir. 1993)); see also Valdes, 89 Fed. Cl. at 424 ("Several tasks lumped together with one time entry frustrates the court's ability to assess the reasonableness of the request.") (quoting Broekelschen, 2008 WL 5456319, at *4-5). The special master may reduce the requested award accordingly if the documentation is inadequate. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989) (citations omitted); see also Mostovoy, 2016 WL 720969, at *6 ("[T]he undersigned will not compensate Mr. McHugh for the 347.65 hours for which the billing entries are vague, the time expended is excessive, the task appears irrelevant to petitioners' medical theory, and/or the billing entry constitutes block billing.").
Here, petitioners failed to provide detailed billing records for Dr. Becker, former Chief Special Master Vowell found by a preponderance of the evidence that Dr. Becker plagiarized his expert report, and former Chief Special Master Vowell did not rely on Dr. Becker's opinion in making a determination in the case. See Fees Decision at 26-28; Raymo, 2014 WL 1092274, at *13-14. Petitioners had the burden of demonstrating that Dr. Becker's fees and contributions to the case were documented and reasonable. The chief special master adequately explained that petitioners did not meet this burden, and thus she did not abuse her discretion in not allowing any recovery for Dr. Becker's costs.
Petitioners bear the burden of establishing that a cost is reasonable and providing sufficient documentation, as discussed supra. Here, petitioners provided billing statements for the life care planners, but those statements failed to adequately explain the hours spent on the case, rate charged, or work performed. Fees Decision at 28. The lack of detailed billing information made it "impossible to determine the reasonableness of the time expended by the life care planners." Id. at 29. Additionally, the life care planners requested hourly rates above $500 per hour, which is higher than the chief special master had ever previously awarded. Id. at 28-29. Given the vague documentation and excessive rates, the chief special master did not abuse her discretion in reducing the life care planners' costs by 50 percent.
Petitioners challenge the chief special master's decision to reduce certain travel expenses as arbitrary, and argue that the travel accommodations used were more reasonable than any available alternatives.
The chief special master provided a specific explanation as to why a reduction was appropriate. She considered petitioners' use of a charter flight and "Little Rock Limousine" to be excessive. Fees Decision at 31. A decision not to award costs for travel expenses is appropriate when petitioner fails to show that the expenses were reasonably necessary. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. Cl. 719, 732 (2011) (affirming the special master's disallowance of expenses related to an attorney's first day of travel because the attorney chose to arrive one day earlier than was required); Hines, 22 Cl. Ct. at 755 (affirming the special master's disallowance of certain travel expenses by an attorney because the attorney failed to demonstrate that the trip was necessary). Petitioners assert that the travel expenses at issue were reasonable and cheaper than the alternative, but fail to provide any support for their claim. See Hines, 22 Cl. Ct. at 755 (holding that petitioner failed to justify travel expenses related to a hearing because petitioner only provided a "bald allegation" that it was necessary for multiple attorneys to be involved at the hearing). Thus, the chief special master did not abuse her discretion.
Finally, petitioners' challenge the chief special master's decision not to allow any costs related to the interest accumulated on petitioners' loan. Pet'rs' Mem. at 17-18. The chief special master concluded that an interest award was unreasonable. Fees Decision at 31.
As a general matter, "interest cannot be recovered in a suit against the [g]overnment in the absence of an express waiver of sovereign immunity from an award of interest." Preseault v. United States, 52 Fed. Cl. 667, 677 (2002) (quoting Library of Congress v. Shaw, 478 U.S. 310, 311 (1986), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, § 114, 105 Stat. 1071 (1991)). This "no-interest rule" can only be waived by a specific provision in a contract or statute, or by the express consent of Congress. England v. Contel Advanced Sys., Inc., 384 F.3d 1372, 1379 (Fed. Cir. 2004) (citing Shaw, 478 U.S. at 317). "[A] general waiver as to attorneys' fees, without more, does not waive the sovereign's immunity from interest." Preseault, 52 Fed. Cl. at 677 (citing Shaw, 478 U.S. at 318-19).
The no-interest rule has been applied in the analogous context of the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970 ("Uniform Relocation Act"), Pub. L. No. 91-646, § 304, 84 Stat. 1906 (codified at 42 U.S.C. § 4654). Under the Uniform Relocation Act, a prevailing plaintiff is entitled to reimbursement from the government for, among other things, reasonable attorneys' fees and costs. 42 U.S.C. § 4654(c). However, the Act does not expressly provide for reimbursement of accumulated interest. See id.; see also Preseault, 52 Fed. Cl. at 670; Shelden v. United States, 41 Fed. Cl. 347, 351 (1998), appeal dismissed, 194 F.3d 1330 (Fed. Cir. 1999). Thus, consistent with the no-interest rule, courts addressing Section 4654 under the Uniform Relocation Act have not awarded claims for interest on attorneys' fees or costs. See Preseault, 52 Fed. Cl. at 677 (noting that plaintiffs cannot recover interest on attorneys' fees and expenses); Shelden, 41 Fed. Cl. at 353 ("[P]laintiffs cannot recover interest on fees spent litigating the case."); see also Applegate v. United States, 52 Fed. Cl. 751, 770-71 (2002) (noting that although the Fifth Amendment provides for interest related to the property at issue, it does not allow for the recovery of interest on attorneys' fees and expenses), aff'd, 70 Fed. Appx. 582 (Fed. Cir. 2003). Correlatively, the no-interest rule has also been applied in contract disputes. See England, 384 F.3d at 1379 ("The [no-interest] rule has been held not only to bar the recovery of interest on substantive claims against the government . . . but also interest costs incurred on money borrowed as a result of the government's breach or delay in payment.") (internal citations omitted).
Here, similar to the Uniform Relocation Act, the Vaccine Act provides for reasonable attorneys' fees and costs, but does not provide for an award related to interest accumulated on those fees and costs. See 42 U.S.C. § 300aa-15. Though petitioners request costs for interest on a loan to finance the case, rather than interest on attorneys' fees, the same no-interest principle is applicable because there is no provision, whether by statute, contract, or consent of Congress, that allows for such an award. Thus, the chief special master did not abuse her discretion in not awarding any costs for interest.
For the reasons stated, petitioners' motion for review of the chief special master's decision awarding attorneys' fees and costs is DENIED, and the chief special master's decision on attorneys' fees and costs is AFFIRMED.
It is so
