HERBRINA D. SANDERS, Special Master.
On October 8, 2013, Kenneth Schultheis ("Petitioner") petitioned for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).
On April 11, 2017, Petitioner filed an application for attorneys' fees and costs. Petitioner requested attorneys' fees in the amount of $36,787.10 and attorneys' costs in the amount of $7,594.18. See Pet'r's Mot. Att'ys' Fees and Costs ("Mot.") at 1, ECF No. 71. Pursuant to General Order 9, Petitioner stated that he had not personally incurred any expenses during the prosecution of this claim. ECF No. 71-1. Respondent indicated that "[t]o the extent the Special Master is treating [P]etitioner's request for attorneys' fees and costs as a motion that requires a response from [R]espondent . . . Respondent is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Resp't's Resp. at 2, filed Apr. 28, 2017. Respondent recommended that the undersigned exercise her discretion and determine a reasonable award for attorneys' fees and costs. Id. at 3. Petitioner filed a reply on May 8, 2017 claiming that Respondent's position burdened the Court and prejudiced Petitioner. Pet'r's Reply at 2. Without specific objections from Respondent, Petitioner argued, the Court determines fee applications without allowing petitioners the opportunity to respond to any "issues or misperceptions." Id. Petitioner then argued that his requested rates are reasonable and that he met his burden establishing the reasonableness of his request. Id. at 3-5.
For the reasons discussed below, the undersigned awards Petitioner $36,408.93 in attorneys' fees and $7,594.18 in attorneys' costs, for a total award of $44,003.11.
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., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an "initial estimate . . . by `multiplying the numbers 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)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specific findings. Id. at 1348.
It is "well within the special master's discretion" to determine the reasonableness of fees. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines v. Sec'y of Health & Human Servs., 22 Cl Ct. 750, 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., 85 Fed. Cl. 313, 316-18 (2008).
Reasonable hourly rates are determined by looking at the "prevailing market rate" in the relevant community. See Blum, 465 U.S. at 895. The "prevailing market rate" is akin to the rate "in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.
In Avera, the Federal Circuit determined that the forum of the Vaccine Act is Washington, D.C. 515 F.3d at 1348. The Federal Circuit also decided that the forum rate for attorneys' fees should generally apply in Program cases. Id. However, it created an exception pursuant to Davis County: where most of an attorney's work is performed outside of the forum and there is a "very significant difference" between the forum rate and the attorney's lower local rate, a court should calculate fees under the local rate. Id. at 1349. A court must first determine the forum rate, then determine the local rate, and finally determine whether a "very significant difference" exists between them. Davis Cty., 169 F.3d at 758.
The majority of counsel's work in this case was performed in the Washington, DC office of Maglio, Christopher, & Toale ("MCT"). Therefore, McCulloch forum rate ranges will apply to the attorneys' rates.
Special Master Gowen determined the reasonable forum rate ranges for attorneys with varying years of experience. McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). Pursuant to McCulloch, a forum attorney with more than 20 years of experience may be awarded $350 to $425 per hour. Id. An attorney with less than four years of experience, on the other hand, has a reasonable hourly rate between $150 and $225. Id.
In the instant case, Ms. Strait had been practicing for seven years in 2017. See Pet'r's Ex. 18 at 1, ECF No. 71-4. Thus, she would fall within the $230 to $307 McCulloch range, as reflected in the 2017 Office of Special Masters' Attorneys' Forum Hourly Rate Fee Schedule.
The second step in Avera is for the Court to make an upward or downward modification based upon specific findings. 515 F.3d at 1348. In a review of MCT's billing records, the undersigned found Ms. Strait requested her full hourly rate for traveling. Pet'r's Ex. 16 at 5. Following Gruber, the undersigned will grant a full hourly rate for travel where an attorney provides documentation that she or he performed work while traveling. 91 Fed. Cl. at 791; see also Amani v. Sec'y of Health & Human Servs., No. 14-150V, 2017 WL 772536, at *6 (Fed. Cl. Spec. Mstr. Jan. 31, 2017).
Here, Ms. Strait requests $295 per hour for 2.3 hours of travel on April 18, 2014. Her billing entry for that date states, "Drive to (1.1) and from (1.2) client home for client visit." Id. The undersigned will award Ms. Strait an hourly rate of $196.67 for travel, which amounts to two-thirds of her reasonable rate of $295. See also Collins v. Sec'y of Health and Human Servs., No. 15-661V, 2017 WL 1315687, at *3 (Fed. Cl. Spec. Mstr. Mar. 15, 2017). This reduction reflects travel time wherein Ms. Strait was driving and therefore limited in her ability to engage in any other work or personal activity. The total reduction for these hours is $226.17.
Like 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 $7,594.18 in attorneys' costs. The costs are associated with medical record retrieval, research, travel to meet the client, postage, and a filing fee. The undersigned finds them to be reasonable and awards them in full.
Based on all of the above, the undersigned finds that Petitioner is entitled to the following award of reasonable attorneys' fees and costs:
The undersigned has reviewed Petitioner's counsel's detailed records of time and expenses incurred in this case, and they are reasonable with the above reductions. In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioner is entitled to attorneys' fees and costs.