In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1774V
Filed: October 29, 2020
* * * * * * * * * * * * * *
ESTON HOOD, * UNPUBLISHED
Petitioner, *
*
v. * Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Ronald Homer, Conway Homer, P.C., Boston, M.A., for petitioner.
Julia Collison, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On November 13, 2017, Eston Hood (“Mr. Hood” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that
he suffered Guillain-Barré syndrome after receiving an influenza vaccine on October 31, 2014.
See Petition, ECF No. 1. On March 23, 2020, Respondent filed his proffer which the undersigned
adopted as her decision awarding compensation on the same day. ECF No. 58.
On July 16, 2020, petitioner filed an application for final attorneys’ fees and costs. ECF
No. 63 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$63,044.16 (representing $44,439.30 in attorneys’ fees and $18,153.67 in costs). Fees App. at 2.
Pursuant to General Order No. 9, counsel for petitioner warrants that petitioner has personally
incurred costs in the amount of $451.19. ECF No. 64. Respondent responded to the motion on
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
July 21, 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. 65.
Petitioner did not file a reply thereafter.
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, 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). Here, because petitioner
was awarded compensation pursuant to a proffer, he is entitled to a final award of reasonable
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., 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.2
Petitioner requests the following hourly rates for the work of his counsel Mr. Homer,
associate attorneys, law clerks and paralegals:
2017 2018 2019 2020
R. Homer $409 $421 $430 $447
M. Daniels $286 $294 $320 $350
J. Pepper - $305 $325 $355
L. Faga - $289 $285 -
C. Ciampolillo - - $350 -
P. Kelly - - - $225
Law Clerks $148 $152 $155 $155
Paralegals $138 $142 $145 $155
These hourly rates are consistent with what Mr. Homer and his staff have previously been
awarded for their Vaccine Program work, and the undersigned finds them to be reasonable herein.
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,
2
The 2015-2020 Fee Schedules can be accessed 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, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
3
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).
The overall hours spent on this matter appear to be reasonable. The undersigned has
reviewed the billing entries and finds that they adequately describe the work done on the case and
the amount of time spent on that work. None of the entries appear objectionable, nor has respondent
identified any entries as objectionable. Accordingly, petitioner is entitled to a final award of
attorneys’ fees in the amount of $44,439.30.
C. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $18,153.67 in costs for acquiring medical records, costs associated with travel, shipping
and the Court’s filing fee. The undersigned finds these costs reasonable and supported with
adequate documentation. Accordingly, petitioner is entitled to the full amount of costs sought.
III. Conclusion
In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is
GRANTED. The undersigned finds that the petitioner is entitled to a reimbursement of attorneys’
fees and costs as follows:
1) A lump sum of $62,592.97, representing reimbursement for attorneys’ fees and
costs, in the form of a check payable jointly to petitioner and petitioner’s counsel,
Ronald Homer; and
2) A lump sum of $451.19, representing reimbursement for petitioner’s costs, in the
form of a check payable to petitioner.3
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
3
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,” and fees for legal services rendered. Furthermore, Section 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).
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).
4
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
5