In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-303V
Filed: October 23, 2017
UNPUBLISHED
JUDITH MAJORIE TIPTON,
Petitioner, Special Processing Unit (SPU);
v. Attorneys’ Fees and Costs;
Research; Overhead Costs;
SECRETARY OF HEALTH AND Excessive and Block Billing
HUMAN SERVICES,
Respondent.
Philip James Roth, Jr., Marshall, Roth & Gregory, P.C., Asheville, NC, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On March 8, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine
Act. Petitioner alleged that she suffered injuries, including Guillain-Barré Syndrome
(“GBS”) “resulting from adverse effects of a trivalent influenza vaccination she received
on December 30, 2013.” Petition at 1 (emphasis omitted); accord. Petition at ¶¶ 1, 28.
On May 4, 2017, the undersigned issued a decision awarding compensation to
petitioner based on the parties’ stipulation. (ECF No. 26).
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
I. Petitioner’s Motion for Attorneys’ Fees and Costs
On May 22, 2017, petitioner filed a motion for attorneys’ fees and costs.
Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Motion”) (ECF No. 30).
Petitioner requests attorneys’ fees in the amount of $42,085.90 and attorneys’ costs in
the amount of $10,348.81. See 2nd Attachment to Pet. Motion at 6, 8. In compliance
with General Order #9, petitioner filed a signed statement indicating that petitioner
incurred no out-of-pocket expenses. See 5th Attachment to Pet. Motion (ECF No. 30-5).
Thus, the total amount requested is $52,434.71.
On June 6, 2017, respondent filed a response to petitioner’s motion. (ECF No.
31). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
Petitioner filed no reply.
II. Legal Standard for Determining the Amount of Fees and Costs
Since petitioner was awarded compensation for his injury, he is entitled to an
award of reasonable attorneys’ fees and costs. § 15(e)(1) (emphasis added). As the
Federal Circuit noted, attorneys’ fees and costs were “not expected to be high” due to
the “no-fault, non-adversarial system” set forth in the Vaccine Act. Saxton ex rel. v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993) (quoting H.R. REP.
NO. 99-908, at 36 reprinted in 1986 U.S.C.C.A.N. 6344, 6377).
Reasonable attorneys’ fees are calculated by multiplying a reasonable hourly
rate by a reasonable number of hours expended on litigation, the lodestar approach.
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)); Saxton, 3 F.3d at 1521. Although
not explicitly stated in the statute, the requirement that only reasonable amounts be
awarded applies to costs as well as fees. See Perriera v. Sec’y of Health & Human
Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable
expert costs are calculated using the same lodestar method as is used when calculating
attorneys’ fees. Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009 WL
1838979, at *37 (Fed. Cl. Spec. Mstr. June 12, 2009).
Special masters have “wide latitude in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750,
753 (Fed. Cl. 1991). They are entitled to rely on their prior experience and, based on
experience and judgment, may reduce the number of hours to an amount reasonable
2
for the work performed. Saxton, 3 F.3d at 1521. A line-by-line evaluation of the billing
records is not required. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483
(Fed. Cl. 1991) aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam).
Furthermore, the special master may reduce a fee request sua sponte, apart from
objections raised by respondent and without providing a petitioner notice and
opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.
201, 209 (2009).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson, 24 Cl. Ct. at 484. He “should present
adequate proof [of the attorneys’ fees and costs sought] at the time of the submission.”
Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a
fee request hours that are excessive, redundant, or otherwise unnecessary, just as a
lawyer in private practice ethically is obligated to exclude such hours from his fee
submission.” Hensley v. Eckhart, 461 U.S. 424, 434 (1983).
III. Reasonable Amount of Attorneys’ Fees and Costs
A. Appropriate Hourly Rates
Petitioner seeks attorneys’ fees in the amount of $42,085.90 which reflects the
following hourly rates:
Mr. Philip Roth (attorney): $350 for 2014-16
$358 for 2017
Ms. Cindy Sprouse (paralegal): $125 for 2014-17
See 2nd Attachment to Pet. Motion at 1-6. Along with her motion, petitioner submitted
an affidavit from petitioner’s counsel indicated he has been practicing law since 1992.
See 1st Attachment to Pet. Motion. Thus, these rates are within the ranges of forum
rates in the schedules found on the court’s website3 which are based upon the ranges
of forum rates set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V,
2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).4
3 See http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf
(last visited on Aug. 9, 2017) (for the OSM’s 2015-16 Fee Schedule);
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf (last
visited on Aug. 9, 2017) (OSM’s 2017 Fee Schedule).
4Although the parties in McCulloch did not seek review, much of the reasoning of the McCulloch decision
was later examined approvingly in Garrison v. Sec’y of Health & Human Servs., No. 14-762V, 128 Fed.
Cl. 99 (2016).
3
However, petitioner’s fee request includes entries for Mr. Roth and Ms. Sprouse
which include travel time to and from petitioner’s home. See 2nd Attachment to Pet.
Motion at 2 (entries dated 6/25/14 (2nd and 3rd)). These entries, in the amounts of 2.00
and 2.70 hours respectively, include a meeting with petitioner and her husband. In
future billing statements, petitioner’s counsel should separate time spent traveling from
time spent performing substantive work. It appears that petitioner’s home is
approximately 30 minutes from the office of petitioner’s counsel. Thus, the undersigned
will treat 1.00 hour of time billed for each Mr. Roth and Ms. Sprouse as travel time.
In the Vaccine Program, special masters traditionally have compensated time
spent traveling when no other work was being performed at one-half an attorney’s
hourly rate. See Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL
3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health &
Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27,
2009); English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at
*12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). Special masters should not use this rule as
standard practice but rather “[e]ach case should be assessed on its own merits.”
Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). “Even an
automatic 50% award may be too high for an undocumented claim, given the possibility
that an attorney may use the travel time to work on another matter or not to work at all
while traveling.” Id.
The undersigned finds the rates requested to be appropriate hourly rates for work
performed by Mr. Roth and Ms. Sprouse in this case. The rates for 1.00 hour of travel
time each for Mr. Roth and Ms. Sprouse will be reduced to 50 percent of their usual
rate. This reduction results in a deduction of $237.50 ($175.00 for Mr. Roth and
$62.50 for Ms. Sprouse).
B. Reduction in Amount of Hours Billed
1. Research
Petitioner’s counsel, Mr. Roth, billed 22.00 hours for time spent researching
Vaccine Program procedures and caselaw relevant to petitioner’s claim.5 All work was
performed in 2015-16, and thus, is billed at Mr. Roth’s hourly rate of $350.
The full amount of this time should not be compensated as “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). “An inexperienced attorney may
not ethically bill his client to learn about an area of law in which he is unfamiliar. If an
attorney may not bill his client for this task, the attorney may also not bill the Program
5See 2nd Attachment to Pet. Motion at 2-6 (entries dated 3/14/14, 2/4/15, 2/5/15 (2nd), 3/4/15, 3/5/15 (2nd),
3/18/15 (2nd), 11/24/15, 2/9/16 (3rd), 2/11/16, 11/15/16, and 12/19/16 (2nd)).
4
for this task.” Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL
2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007).
However, this is the first case in the Vaccine Program for petitioner’s counsel.
Additionally, Mr. Roth performed high quality work in this case. There were numerous
instances where Mr. Roth’s familiarity with caselaw, the Vaccine Rules, and Guidelines
for Practice Under the National Vaccine Injury Compensation Program (“Guidelines”)
aided the efficient conclusion of petitioner’s claim. Thus, the undersigned will
compensate 8.00 hours of this time. The undersigned will not compensate hours billed
by Mr. Roth for this type of general research in future cases.6 The nonpayment of the
remaining 14.00 hours results in a deduction of $4,900.00.
2. Overhead Office Costs
In several instances, petitioner seeks amounts which should be considered
normal overhead office costs. For example, the billing records show entries totaling
1.10 hours for payment of expenses and other secretarial work performed by Ms.
Sprouse. See 2nd Attachment to Pet. Motion at 2-3 (entries dated 7/24/14, 7/25/14, and
10/8/15). It is clearly established that secretarial work “should be considered as normal
overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S., 18 Cl.
Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL
630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other
secretarial work is not permitted in the Vaccine Program.” Mostovoy v. Sec’y of Health
& Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4,
2016) (citing Rochester, 18 Cl. Ct. at 387).
Additionally, petitioner seeks fees for time expended by Ms. Sprouse and Mr.
Roth dealing with technical issues and researching the life care planner petitioner
planned to retain. See 2nd Attachment to Pet. Motion at 4 (entries dated 3/10/16 (2nd)
and 8/17/16 (1st and 2nd)). This type of work is also considered administrative. See,
Riggins v. Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *17
(Fed. Cl. Spec. Mstr. June 15, 2009). Nonpayment of these entries results in a
deduction of $620.00.
3. Excessive and Block Billing
Several entries in the billing records submitted show hours that are excessive for
the task described. For example, petitioner seeks 1.50 hours of time for Mr. Roth to
review the decision awarding compensation and to email respondent’s counsel, Ms.
Gangi, regarding a joint notice not to seek review. See 2nd Attachment to Pet. Motion at
6 (entry dated 5/8/17 (2nd)). Most attorneys could perform each of these tasks in .10 to
6 The undersigned similarly compensated 8.00 hours of research performed by a petitioner’s counsel new
to the Vaccine Program in Twerdok v. Sec’y of Health & Human Servs., No. 14-1237V, 2016 WL
7048036, at *6 (Fed. Cl. Spec. Mstr. Aug. 4, 2016). In that case, the undersigned stressed that counsel
had not billed time for research in her second case involving the same type of injury. Id.
5
.20 hours. The decision awarding compensation is a less than two page decision
adopting the terms of the stipulation which Mr. Roth negotiated and reviewed just five
days earlier. See id. (entry dated 5/3/17).
Additionally, numerous billing entries list multiple tasks performed by Mr. Roth
and Ms. Sprouse. This type of “block billing” is not appropriate in vaccine cases. See
Barry v. Sec’y of Health & Human Servs., No. 12-39V, 2016 WL 6835542, at *4 (Fed.
Cl. Spec. Mstr. Oct. 25, 2016); Mostovoy, 2016 WL 720969, at *5-6; Doe/11 v. Sec’y of
Health & Human Servs., No. XX-XXXXV, 2010 WL 529425, at *8 (Fed. Cl. Spec. Mstr.
Jan. 29, 2010). In many instances, some of the time is compensable and some is not.
For example, in early January 2017, Mr. Roth indicates that he spent .80 hours
performing research and emailing Ms. Gangi. See 2nd Attachment to Pet. Motion at 6.
(entry dated 1/4/17 (2nd)). The next month, Mr. Roth indicates he spent 1.20 hours
reviewing the undersigned’s 15-Week Order and researching the process for requesting
fees. See id. (entry dated 2/8/17 (2nd)). In each case, one task should be
compensated, and the other should not.
Due to excessive and block billing, the undersigned reduces petitioner’s entire
fee award by 10 percent. See Willett v. Sec’y of Health & Human Servs., No. 15-252V,
2017 WL 3298983, at *4 (Fed. Cl. Spec. Mstr. June 2, 2017) (reducing fee award by 20
percent); Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016 WL 447770, at
*5 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reducing fee award by 10 percent); Raymo v.
Sec’y of Health & Human Servs., No. 11-654V, 2016 WL 7212323, at *18 (Fed. Cl.
Spec. Mstr. Nov. 2, 2016) (reducing fee award by 20 percent), mot. for rev. denied, 129
Fed. Cl. 691 (2016); see also Wasson, 24 Cl.Ct. at 484 (a line-by-line evaluation is not
required in determining a reasonable number of hours expended), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993). This adjustment results in a further deduction of
$3,632.84.
C. Appropriate Amount of Costs
Petitioner seeks reimbursement for costs in the amount of $10,348.81. See 2nd
Attachment to Pet. Motion at 6-8.
1. Research
The amount sought includes $143.87 for research. See id. (entries dated
3/17/14, 2/4/15, 2/6/15, 3/15/16 (2nd), and 11/7/16 (1st and 3rd)). Since the undersigned
is paying attorneys’ fees for only a portion of the researched performed by petitioner’s
counsel, she will pay only 50 percent of these costs. Thus, the costs sought are
reduced by $71.94.
6
2. In House Copying and Postage
Petitioner’s counsel also billed $423.79 for postage and in house copying costs.
See id. Special masters generally have allowed in house copying costs at a specific
amount per page, currently 20 or 25 cents. See Sabella, 86 Fed. Cl at 225; Fragoso v.
Sec’y of Health & Human Servs., No. 08-236V, 2011 WL 300139, at *3 (Fed. Cl. Spec.
Mstr. Jan. 6, 2011) (awarding copying costs at 20 cents per page); Picciotti v. Sec’y of
Health & Human Servs., No. 99-506V, 2010 WL 3920511, at *8 (Fed. Cl. Spec. Mstr.
Sept. 14, 2010) (awarding copying costs at 20 cents per page); English, 2006 WL
3419805, at *15 (awarding copying costs at 25 cents per page). Petitioner has
requested copying costs at 20 cents a page which the undersigned finds is an
appropriate rate.
The amount of entries for in house copying and postage, however, seems
excessive. There are more than 70 such entries. Furthermore, none of these entries
includes a description beyond “Postage Expense” or “Copy Expense.” See 2nd
Attachment at 6-8. Comparing the billing records of attorney and paralegal work
indicates some of these entries were, most likely, for record requests. See id. at 2-8. It
also appears that petitioner’s counsel may have been printing, copying, and individually
mailing all documents to petitioner. Although petitioner’s counsel should be
commended for keeping petitioner informed of the activity in her case, it seems there is
a more efficient manner of doing so. Because these costs seem excessive and have
vague descriptions, the undersigned will reduce them by 10 percent, resulting in a
deduction of $42.38.
3. DVDs
Petitioner seeks costs in the amount of $40.00 for three different DVD purchases.
See id. at 7-8 (entries dated 3/8/16, 4/28/16, and 9/2/16). The cost of office supplies
such as paper, pens, labels, and CDs has been disallowed as overhead expenses. See
Whitener v. Sec’y of Health & Human Servs., No. 06-477V, 2011 WL 1467919, at *8
(Fed. Cl. Spec. Mstr. Mar. 25, 2011); Lamar v. Sec’y of Health & Human Servs., No. 99-
584V, 2008 WL 3845157, at *15 (Fed. Cl. Spec. Mstr. July 30, 2008) (citing Borger v.
Sec’y of Health & Human Servs., No. 90-1066V, 1993 WL 540817, at *2 (Fed. Cl. Spec.
Mstr. Dec. 16, 1993). One special master has allowed the cost of folders used to file
medical records because the folders were required by the court at that time. See
Corder v. Sec’y of Health & Human Servs., No. 97-125V, 1999 WL 1427753, at *11
(Fed. Cl. Spec. Mstr. Dec. 22, 1999).
In this case, petitioner filed her medical records on CDs on March 16, 2016. See
Exhibits 1-11 (ECF No. 8). Only one purchase of DVDs occurred prior to that date. See
2nd Attachment to Pet. Motion at 7 (entry dated 3/8/16 (2nd)). Additionally, the court
does not require that medical records be filed on CDs, but rather encourages electronic
7
filing.7 Thus, the amount requested for these three purchases is denied. The amount of
costs is further reduced by a deduction of $40.00.
4. Costs for Life Care Planner
Petitioner has submitted adequate documentation regarding the costs sought for
petitioner’s life care planner in this case. See 4th Attachment to Pet. Motion at 16-30.
Petitioner’s life care planner billed 44.10 hours of work at a rate of $150 and 15.00
hours of travel time at a rate of $75. See id. at 29. The undersigned approved the use
of life care planners in this case. See, e.g., Order, issued Sept. 13, 2016 (ECF No. 13).
Additionally, in an efficient use of Program resources, the life care planners for
petitioner and respondent performed a joint home visit. See, e.g., id. The undersigned
finds no reason to reduce the amount sought for petitioner’s life care planner.
IV. Conclusion
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). The undersigned awards petitioner the following for attorneys’ fees and costs:
Requested attorneys’ fees: $42,085.90
Travel Rate Adjustment - $237.50
Research Deduction - $4,900.00
Overhead Costs Deduction - $620.00
Excessive and Block Billing Deduction - $3,632.84
Adjusted Fees Total: $32,695.56
Requested attorneys’ costs: $10,348.81
Research Deduction - $71.94
Excessive and Vague Deduction - $42.38
Overhead Costs Deduction - $40.00
Adjusted Costs Total: + $10,194.49
Total Attorneys’ Fees and Costs Awarded: $42,890.05
7 As noted in the Supplement to Appendix B, Electronic Case Filing Procedure in Vaccine Act Cases,
III.10 at http://www.uscfc.uscourts.gov/sites/default/files/170801VaccineRules.pdf, medical records which
exceed the court’s filing size can be divided into multiple pdf files. In the court’s latest guidance, the
preference for electronic filing is clearly stated. See Vaccine Case Processing and Filing Pointers which
can be found on the court’s website at
http://www.uscfc.uscourts.gov/sites/default/files/17.10 Vaccine Filing Tips.pdf.
8
Accordingly, the undersigned awards the total of $42,890.058 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Philip James Roth, Jr.
The clerk of the court shall enter judgment in accordance herewith.9
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
8This 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).
9 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9