In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-375V
Filed: January 24, 2018
* * * * * * * * * * * * * * *
DEBRA BAKER, * UNPUBLISHED
*
Petitioner, *
v. * Decision on Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Andrew Krueger, Esq., Krueger & Hernandez S.C., Middleton, WI, for petitioner.
Robert Paul Coleman, III, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On March 24, 2016, Debra Baker (“Ms. Baker” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that
she developed Guillain-Barre Syndrome (“GBS”) and Bell’s palsy as a result of receiving a
tetanus-diphtheria-acellular pertussis (“TDaP”) vaccination on July 14, 2015. See Petition (“Pet.”),
ECF No. 1. On January 16, 2018, the undersigned issued a Decision awarding compensation to
petitioner based on the parties’ stipulations. See Decision, ECF No. 32.
On November 7, 2017, petitioner filed a Motion for Attorneys’ Fees and Costs. Motion for
Fees, ECF No. 27. Petitioner requests attorneys’ fees in the amount of $16,692.30, and attorneys’
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the
E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and
move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that
provision, I will delete such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
1
costs in the amount of $914.69, for a total amount of $17,606.99. Id. at 4. In accordance with
General Order #9, petitioner’s counsel represents that petitioner incurred $400.00 in out-of-pocket
expenses. Id.
On November 21, 2017, respondent filed a response to petitioners’ Motion for Fees.
Response, ECF No. 29 Respondent provided no specific objection to the amount requested or
hours worked, but instead, “respectfully recommend[ed] that the Special Master exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioner did
not file a reply.
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, 133 S. Ct. 1886, 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).
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, “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.” 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.
Special masters have 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., 86 Fed. Cl.
201, 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., 102 Fed.
Cl. 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.” Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 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., 632 F.3d 1381, 1384 (Fed. Cir. 2011)
(citing Avera, 515 F. 3d at 1349). 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
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
2
Servs., 640 F.3d 1351, 1353 (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 accepted the decision in McCulloch and
has issued a Fee Schedule for subsequent years.3
The requested hourly forum rates are consistent with the rates previously found to be
reasonable in cases involving Mr. Mark Krueger, Mr. Andrew Krueger, and Ms. Renee Nehring.
See Herrera v. Sec’y of Health & Human Servs., No. 15-651V, 2017 WL 1459002 (Fed. Cl. Spec.
Mstr. Mar. 29, 2017). Therefore, the undersigned finds the requested rates to be reasonable.
B. Hours Reasonably Expended
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. 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). 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, 2015 WL 2399211, 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, 2015 WL 5634323, 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,
2014 WL 2885684, 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, 2016 WL 2853910, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-
29 (affirming the Special Master’s reduction of attorney and paralegal hours); Guy v. Sec’y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).
3
The fee schedules are posted on the Court’s website. See Office of Special Masters, Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016, http://www.uscfc.uscourts.gov/sites/default/files/Attorneys
-Forum-Rate-Fee-Schedule2015-2016.pdf (last visited January 24, 2018); Office of Special Masters,
Attorneys’ Forum Hourly Rate Fee Schedule: 2017,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2017.pdf (last
visited January 24, 2018).
3
Upon review of petitioner’s application, the undersigned noted that petitioner’s counsel
billed time for tasks which had not yet been completed. For example, Mr. Andrew Krueger billed
0.20 hours for “Review Decision” on October 12, 2017, when the special master’s decision was
not issued until January 16, 2018. Motion for Fees at 11. Similarly, Mr. Krueger also billed 0.4
hours for “Draft and E-File Joint Notice Not to Seek Review” and 0.40 hours for “Draft and E-
File Election to Accept Judgment” on October 12, 2017 – approximately 3 months before there
was a decision or a judgment issued in this matter. Id. Mr. Krueger also billed 3 hours for “Draft
Fee Application and anticipated time for Reply,” yet no reply was filed in this matter. Id. Mr.
Krueger is cautioned to refrain from “pre-billing” hours in future fee applications, and wait to file
his fee application until after these tasks are completed, so that he does not bill for tasks that are
not done. Further instances of this practice will result in a reduction of attorneys’ fees.
C. Reasonable Costs
Petitioner requested a total of $914.69 in attorneys’ costs. See Motion for Fees, ECF No.
27-1. The requested costs consist of costs associated with obtaining medical records. Id. The
undersigned finds petitioner’s requested costs to be reasonable.
III. Total Award Summary
Based on the foregoing, the undersigned awards the total of $18,006.994 as follows:
$17,606.99 representing reimbursement for attorneys’ fees and costs, with attorneys’
fees in the amount of $16,692.30 and costs in the amount of $914.69, in the form of a
check made payable jointly to petitioner and petitioner’s counsel, Andrew Krueger, Esq,
and
$400.00 representing reimbursement for out-of-pocket expenses, in the form of a
check made payable to petitioner, Debra Baker.
The Clerk of the Court is directed to enter judgment in accordance with this Decision.5
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
4
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal
services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees
(including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of
Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
5
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice
renouncing the right to seek review.
4