Not to be Published

DECISION ON ATTORNEY'S FEES AND COSTS1

KATHERINE E. OLER, Special Master.

On October 31, 2017, Tonya Hood filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the "Vaccine Program"),2 alleging that she developed multifocal acquired demyelinating sensory and motor neuropathy as a result of, or significantly aggravated by an influenza vaccination administered to her on November 7, 2014. Petition, ECF No. 1. I issued a Decision Denying Compensation on June 26, 2018, dismissing Ms. Hood's petition due to the lack of a proper plaintiff to maintain the action. See Decision Denying Compensation, ECF No. 26. Judgment was entered on July 27, 2018. ECF No. 30.

A Motion for Attorney's Fees and Costs ("Fees Motion," ECF No. 25) was filed on June 21, 2018. Petitioner's counsel, Mr. Mark Sadaka, requests reimbursement of attorney's fees and costs in the combined amount of $9,423.17 (representing attorney's fees in the amount of $8,801.63 and attorney's costs in the amount of $621.54). Fees Motion, Exhibit ("Ex.") A at 7-8. Although a General Order No. 9 statement was not formally filed, Petitioner's counsel affirmatively asserted that his "firm paid for all of the costs occurred in litigating this petition."3 Certification at 6.

Respondent filed a response ("Respondent's Response") to the Fees Motion on July 2, 2018. ECF No. 27. Respondent stated that he "leaves it to the discretion of the Special Master to determine whether the statutory requirements for an award of fees and costs have been met in this case, particularly whether there was a reasonable basis for appealing the underlying Decision on entitlement."4 Id. at 2 (citing Hirmiz v. Sec'y of Health & Human Servs., 135 Fed. Cl. 260, 270 (2017)). Respondent provided no specific objection to the amount requested or hours worked, but instead, "respectfully recommends that the Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3. A reply to Respondent's response was filed on July 3, 2018. ECF No. 28.

For the reasons discussed below, I grant reimbursement of attorney's fees and costs in the combined amount of $9,386.32 (representing $8,764.78 in fees and $621.54 in costs).

I. Applicable Legal Standards

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, 569 U.S. 369, 373 (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, "[t]he initial estimate of a reasonable attorney's fee" 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.5

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. 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). Moreover, 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). 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.

II. Discussion

a. Good Faith and Reasonable Basis

Respondent does not address whether these requirements are met, and leaves such determination to my discretion. Based on my review of the record and the lack of objection from Respondent, I find that this claim was brought in good faith and with a reasonable basis.

b. Reasonable Hourly Rate

Mr. Sadaka requests the following hourly rates for attorney-level work: $376.38 per hour for work performed in 2017 and $404.19 per hour for work performed in 2018. Fees Motion at 4. Mr. Sadaka has previously been awarded the requested 2017 hourly forum rate by a special master. See Brown v. Sec'y of Health & Human Servs., No. 14-235V, 2018 WL 818231 (Fed. Cl. Spec. Mstr. Jan. 18, 2018). I therefore find that Mr. Sadaka's previously awarded 2017 hourly rate is reasonable. Mr. Sadaka proposes that his 2018 hourly rate be increased to $404.19 in order to "account for inflation." Fees Motion at 4 (citing McCulloch, 2015 WL 5634323). Mr. Sadaka has "been admitted to practice in the Court of Federal Claims since June 10, 2005" (Certification at 7), which places his experience in the Vaccine Program to be just over 13 years. Under McCulloch, and the Office of Special Masters' Fee Schedule for 2018, Mr. Sadaka may reasonably receive hourly rates from $317 — $396.6 The proposed rate of $404.19 is inconsistent with the rates reflected in the Fee Schedule for an attorney of counsel's experience. Thus, I award Mr. Sadaka, an attorney with 13 years of experience in the Vaccine Program, a rate of $396.00 per hour for work performed in 2018, which is the highest rate for attorneys with 11 to 19 years of experience. This results in a deduction of $36.86.

Mr. Sadaka requests the following hourly rates for paralegal-level work: $145.17 per hour for work performed in 2017 and $150.55 per hour for work performed in 2018. Fees Motion at 4. Such rates are reasonable as set forth in McColloch and the 2017 and 2018 Fee Schedules. I therefore find that the 2017 and 2018 paralegal hourly rates are reasonable.

c. Time Expended

Time expended by Mr. Sadaka and his staff is reasonable.7 Based on my review of the billing entries, and the lack of objection from Respondent, I will award $8,764.78 in attorney's fees.

d. Reasonable Attorney's Costs

Mr. Sadaka requests a total of $621.54 in attorney's costs. See Fees Motion, Ex. A at 8. The requested costs consist of obtaining medical records, filing the claim, and mailing. Mr. Sadaka provided receipts and invoices for such costs. I therefore find the requested costs to be reasonable, and award the attorney's costs in full.

III. Conclusion

Based on the foregoing, I GRANT IN PART the Motion for Attorney's Fees and Costs. I award $9,386.32,8 representing reimbursement for attorney's fees and costs, in the form of a check payable jointly to Petitioner, Ms. Tonya Hood, and Petitioner's counsel, Mr. Mark Sadaka, Esq. of Mark T. Sadaka, LLC. The clerk shall enter judgment accordingly.9

IT IS SO ORDERED.