In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                          No. 18-805V
                                   Filed: September 18, 2020

* * * * * * * * * * * * *  *
MATTHEW HUSSONG,           *                               UNPUBLISHED
                           *
     Petitioner,           *
                           *
v.                         *                               Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Jessica A. Olins, Esq., Maglio Christopher and Toale, PA, Seattle, WA, for petitioner.
Darryl R. Wishard, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

        On June 6, 2018, Matthew Hussong (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 Petitioner alleged that he developed Guillain-Barré
syndrome and chronic inflammatory demyelinating polyneuropathy after receiving an influenza
vaccination on November 18, 2015. See Petition, ECF No. 1. On April 21, 2020, the parties filed
a stipulation, which the undersigned adopted as her Decision awarding compensation on the same
day. ECF No. 42.

      On May 12, 2020, petitioner filed an application for attorneys’ fees and costs. ECF No.
46 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of

1
  The undersigned intends to post this Decision on the United States Court of Federal Claims' website. This
means the decision will be available to anyone with access to the Internet. In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,
the undersigned is required to post it on the United States Court of Federal Claims' website in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion
of Electronic Government Services).
2
    National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
$54,963.93 (representing $53,701.30 in attorneys’ fees, $1,262.63 in attorneys’ costs. Fees App.
at 2. Pursuant to General Order No. 9, petitioner warrants that he has not personally incurred any
costs in this case.

the motion on May 13, 2020, 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.” Response at 2-3, ECF No. 48. Petitioner filed a reply on May 13,
2020, reiterating his belief that the requested attorneys’ fees and costs are reasonable. ECF No.
49.

         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, 

, 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, because petitioner
was awarded compensation, she is entitled to a reasonable award of attorneys’ fees and costs.

        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., 

, 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.”

(quoting
Blum v. Stenson, 

, 888 (1984)). That product is then adjusted upward or downward
based on other specific findings.

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., 

, 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., 

. 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.” 

(quoting 

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., 

, 1384 (Fed. Cir. 2011)
(citing 

). 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


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jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate.

as the Davis County exception. See Hall v. Sec'y of Health & Human
Servs., 

, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. U.S. EPA, 

, 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, 

(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

        The undersigned has reviewed the hourly rates requested by petitioner for the work of his
counsel at Maglio Christopher and Toale (the billing records indicate that attorney work was
performed by Mr. Altom Maglio, Ms. Ann Golski, Mr. Brent Elswick, Ms. Danielle Strait, Mr.
Isaiah Kalinowski, and Ms. Jessica Olins) and finds that the rates requested are consistent with
what these attorneys have previously been awarded for their Vaccine Program work. Accordingly,
the requested rates are reasonable and shall be awarded herein.

B.      Hours Reasonably Expended

         Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” 

. 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., 

, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 

,
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., 

,
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, 

, 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, 

, 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,

, 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, 

, 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.” 

. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See 

–


3
 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
The hourly rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 

(Fed. Cl. Spec. Mstr. Sept. 1, 2015).


                                                   3
29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 

, 406 (1997) (same).

        The overall hours spent on this matter appear largely reasonable, particularly those billed
by counsel. The hours billed by paralegals, however, are slightly excessive. The undersigned notes
that paralegals billed time for review of routine filings which had already been reviewed by
counsel. Additionally, the undersigned’s impression upon review of the billing entries is that an
overall excessive amount of time was billed for acquiring medical records. Accordingly, the
undersigned shall reduce the billed paralegal hours by ten percent to account for these issues,
resulting in a reduction of $1,123.18. Petitioner is therefore awarded final attorneys’ fees of
$52,578.12.

C.      Reasonable Costs

        Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 

, 34 (Fed. Cl. 1992). Petitioner requests
a total of $1,262.63 in costs, comprised of obtaining medical records, postage, and the Court’s
filing fee. Fees App. Ex. 2 at 1-2. These are typical costs in Vaccine Program cases and appear
reasonable in the undersigned’s experience. Petitioner has also provided adequate documentation
supporting all of the requested costs. Accordingly, petitioner shall be reimbursed in full.

                                            III. Conclusion

       In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned hereby awards a lump sum in the amount of $53,840.75,
representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check
payable to petitioner and his counsel, Ms. Jessica Olins, and be forwarded to Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.

        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.

                                                 s/Mindy Michaels Roth
                                                 Mindy Michaels Roth
                                                 Special Master




4
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).

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