In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-442V
Filed: March 2, 2018
* * * * * * * * * * * * * * *
ANGELA ALLARD, * UNPUBLISHED
*
Petitioner, *
v. * Decision on Attorneys’ Fees and Costs;
* Interim Fees
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Mark Sadaka, Esq., Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.
Debra Begley, Esq., U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS 1
Roth, Special Master:
On May 23, 2014, Angela Allard (“Ms. Allard” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program. 2 Petitioner alleges that
she developed idiopathic thrombocytopenic purpura (“ITP”) as a result of receiving a human
papillomavirus (“HPV”) vaccination on June 2, 2011. See Petition (“Pet.”), ECF No. 1.
On February 8, 2018, petitioner filed a Motion for Interim Attorneys’ Fees and Costs.
Motion for Fees, ECF No. 70. Petitioner requests interim attorneys’ fees in the amount of
$25,569.84, and costs in the amount of $13,800.27, for a total amount of $39,370.11. Id. at 2.
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Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to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
On February 22, 2018, respondent filed a response to petitioners’ Motion for Interim Fees.
Response, ECF No. 71. 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. Interim Fees
Interim fees may be paid at the discretion of the special master. See Avera, 515 F.3d at
1352 (“Interim fees are particularly appropriate in cases where proceedings are protracted and
costly experts must be retained.”) Additionally, “where the claimant establishes that the cost of
litigation has imposed an undue hardship and there exists a good faith basis for the claim, it is
proper for the special master to award interim attorneys’ fees.” Shaw v. Sec’y of Health &
Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010).
This case has been pending for nearly four years. Due to the special master’s full hearing
schedule, an entitlement hearing for this matter would be set in 2019 at the earliest. Therefore, an
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award of interim fees and costs is appropriate so that counsel is not unduly financially burdened
during protracted litigation.
B. 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
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)).
The requested hourly forum rates are consistent with the rates previously found to be
reasonable in cases involving petitioner’s counsel and his staff. See e.g., Rodriguez v. Sec’y of
Health & Human Servs., No. 13-253V, 2017 WL 4509275, at *1 (Fed. Cl. Spec. Mstr. Sept. 15,
2017); Ladue v. Sec’y of Health & Human Servs., No. 12-553V, 2017 WL 2328169, at *5 (Fed.
Cl. Spec. Mstr. May 25, 2017). Therefore, the undersigned finds the requested rates to be
reasonable.
C. 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
3
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).
Upon review of petitioner’s application, the number of hours expended in this case
appear to be reasonable. Accordingly, $25,569.84 is awarded in attorneys’ fees.
D. Reasonable Costs
Petitioner requested a total of $13,800.27 in attorneys’ costs. See Motion for Interim Fees,
Ex. A, ECF No. 70-1. The requested costs include $11,750.00 in expert fees and $1,183.17 in 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 $39,370.11, representing
reimbursement for attorneys’ fees in the amount of $25,569.84 and costs in the amount of
$13,800.27, in the form of a check made payable jointly to petitioner and petitioner’s counsel,
Mark Sadaka, Esq. The Clerk of the Court is directed to enter judgment in accordance with this
Decision.3
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
3
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