Not to be published

BRIAN H. CORCORAN, Special Master.

DECISION GRANTING IN PART MOTION FOR FINAL AWARD OF ATTORNEY'S FEES AND COSTS1

On June 8, 2015, Warren K. Bailey filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program"),2 alleging that he suffered from a shoulder injury related to vaccine administration ("SIRVA") as a result of his September 20, 2013, receipt of the influenza vaccine. Petition dated June 8, 2015 (ECF No. 1).

After settlement discussions between the parties, Respondent filed a "Proffer on Award of Compensation" on March 21, 2017. See Proffer, dated March 21, 2017 (ECF No. 40). On March 23, 2017, the special master to whom the case had been originally assigned issued a Decision awarding Petitioner $125,000.00 in damages. Decision dated March 23, 2017 (ECF No. 41).

On September 6, 2017, Petitioner filed the present motion for attorney's fees and costs. Motion for Attorney Fees ("Fees App."), dated September 6, 2017 (ECF No. 46). Petitioner requests reimbursement in the total amount of $25,401.21 (representing $24,897.00 in attorney's fees and $504.21 in costs).3 Id. at 3. In addition, in compliance with General Order No. 9, Petitioner has filed a signed statement indicating that he incurred an out-of-pocket expense in the amount of $400.00 (representing the court filing fee). See Fees App., Ex. 5. Respondent filed a document reacting to the fees request on September 12, 2017, stating that he is satisfied that the statutory requirements for an award of attorney's fees and costs are met in this case, but deferring to the special master's discretion the determination of the amount to be awarded. ECF No. 47 at 2-3. The matter was subsequently reassigned to me. ECF No. 49.

I. Reasonable Hourly Rates

The Vaccine Act permits an award of reasonable attorney's fees and costs in cases where the Petitioner prevails. Section 15(e). Determining the appropriate amount of a fee award is a two-part process. The first part involves application of the lodestar method — "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered applicable in most cases where a fees award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983).

An attorney's reasonable hourly rate is determined by the "forum rule," which bases the award on rates paid to similarly qualified attorneys in the forum in which the relevant court sits (Washington, DC, for Vaccine Act cases), except where an attorney's work was not performed in the forum and there is a substantial difference in rates. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is known as the Davis exception to the forum rule, which applies if the bulk of the attorney's work was performed outside of Washington, DC, in a location where prevailing rates are substantially lower than the forum rate. Avera, 515 F.3d at 1349 (citing Davis Cty. Solid Waste Mgmt.& Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).

Petitioner requests $265.00 per hour for work by his attorney, Mr. Paul Dannenberg, on the case in 2014, and $275.00 per hour for work performed from 2015 to the present. Fees App. at 3. Mr. Dannenberg practices in Huntington, Vermont. I have previously ruled that the average hourly rate in that location is substantially lower than forum rates, making the Davis exception applicable, and addressed what Mr. Dannenberg's proper rate should accordingly be. See, e.g., Dier v. Sec'y of Health & Human Servs., No. 15-571V, 2017 WL 1033677 at *2 (Fed. Cl. Spec. Mstr. Jan. 18, 2017) (finding Mr. Dannenberg should not receive forum rates because majority of his work is performed at his office in Huntington, Vermont); Glaser v. Sec'y of Health & Human Servs., No. 06-764V, 2016 WL 4491493, at *7 (Fed. Cl. Spec. Mstr. June 6, 2016) (reducing Mr. Dannenberg's rates because he was not entitled to forum rates, and did not provide sufficient proof that he should receive forum rates), vacated on other grounds, 2016 WL 4483022 (June 29, 2016).

Petitioner asks that I reconsider the question of Mr. Dannenberg's proper rates, arguing that "it is a fallacy that vaccine program work is easier and does not require the same compensation rate as general tort litigation." Fees App. at 2. Petitioner further notes that "disregarding the affidavits from general tort practitioners[,]" as I did in Glaser, "is error[.]" Id. at 3. While I have previously rejected requests by Petitioner's counsel to reevaluate my prior rate determinations for Mr. Dannenberg, counsel's present argument appears to be somewhat different, so I will briefly consider it.

In Glaser, Mr. Dannenberg was awarded $238.00 per hour for work performed in 2016. Petitioner disagrees with part of my reasoning in Glaser, which found Hocraffer v. Sec'y of Health & Human Servs., No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25, 2011) to be persuasive in declining to award Mr. Dannenberg a forum-equivalent rate.4 In light of the relevant reasoning in Hocraffer, I noted that Glaser "provide[d] a good example why Vaccine Program litigation does not typically involve the same challenges as other federal actions (which is one of the many reasons that in-forum rates paid to attorneys in the Program can be lower than what they might otherwise be able to command for other kinds of litigation)." Glaser, 2016 WL 4491493, at *9.

Petitioner now selectively cites language from various cases discussing the fact that Vaccine Program work is comparable to tort litigation. See Fees App. at 2-3. The Federal Circuit, however, has held that although Vaccine Act cases present complex medical theories and issues, the attorneys who practice in the Program are not faced with many of the same challenges and tasks that characterize complex litigation — tort or otherwise. See, e.g., Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for review den'd, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381, 1385 (Fed. Cir. 2011) (Vaccine Act litigation is not analogous to "complex federal litigation," in part due to its relaxed legal standards of causation and informal proceedings); Masias v. Sec'y of Health & Human Servs., No. 99-697V, 2009 WL 1838979 (Fed. Cl. Spec. Mstr. June 12, 2009), aff'd, 634 F.3d 1283 (Fed. Cir. 2011) ("attorneys' rate[s] should be appropriate for matters requiring similar skills," and distinguishing vaccine program work from litigation cases that involve persuading juries rather than a special master "who is relatively well-informed about the case").

Petitioner's present arguments are not persuasive or compelling enough to justify a higher hourly rate.5 In fact, this case (which resulted in a proffer that was adopted in the Decision awarding damages, but did not require extensive attorney attention or practice), provides a good example why Vaccine Program litigation does not typically involve the same challenges as other federal actions. Thus, I am not persuaded by such arguments, and I will award the following rates consistent with those previously found to be reasonable for Mr. Dannenberg: $237.00 per hour for 2014 and 2015, and $238.00 per hour for 2016. Glaser, 2016 WL 4491493; Dier, 2017 WL 1033677.

In regard to Mr. Dannenberg's 2017 hourly rate, the special masters currently favor using the producer price index for the office of lawyers ("PPI-OL") as the rate inflator rather than the consumer price index. I will adjust rates for 2017 consistent with the PPI-OL. Thus, the 2017 rate for Mr. Dannenberg that I award herein is $244.00 per hour.6

II. Time Expended

I will award all time requested in this matter, with the exception of three task categories — travel time, research, and fees motion overbilling. First, I note that hours spent traveling on Vaccine Program cases 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). Mr. Dannenberg, however, billed 1.5 hours, at his 2014 rate of $237.00 per hour, for "driving to meeting" on March 21, 2015. Fees App., Ex. 3 at 1. Mr. Dannenberg's billing description does not reflect that he worked on the case during travel time. I find a reduction of $177.75 to be appropriate.7

Second, in regard to research, "it is inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine Program." See Matthews v. Sec'y of Health & Human Servs., No. 14-1111V, 2016 WL 2853910 at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). Mr. Dannenberg, however, billed approximately 1.5 hours conducting such research, which is not compensable.8 I find a reduction of $361.80 to be appropriate.

Finally, the time requested for preparation of the fees motion was unreasonable. Petitioner's fees application was rather simple, and did not warrant 4.8 hours of work. Petitioner's argument in support of reconsidering Mr. Dannenberg's rates is also rather short, consisting of just two paragraphs of direct quotes from other cases, or reattaching evidentiary support previously included, but rejected, in Glaser and Dier. And Petitioner's argument includes a short footnote quoting three cases. I will thus cut this amount in half and award only 2.4 hours for this task, resulting in a final reduction of $585.60.9

III. Reasonable Costs

Petitioner requests a total of $504.21 in attorney's costs. Fees App. at 3. Respondent has offered no specific objections to these costs, and upon review of the record I find that they are reasonable. I also award the $400.00 in expenses incurred exclusively by Warren K. Bailey. IV. Total Award Summary10

Accordingly, an award shall be made in the form of a check payable to Petitioner and his counsel, Mr. Paul Dannenberg, in the amount of $21,106.76, and a check for $400.00 payable to Petitioner.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms of this decision.11

IT IS SO ORDERED.