In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
WILLIE J. BLACKMON, *
* No. 17-1911V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: January 22, 2021
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Ramon Rodriguez, III, Sands Anderson PC, Richmond, VA, for Petitioner;
Heather L. Pearlman, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Willie Blackmon’s motion for final
attorneys’ fees and costs. He is awarded $27,244.17.
* * *
On December 8, 2017, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
1
Because this published decision 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). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
Petitioner alleged that the influenza vaccine he received on December 11, 2014,
which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a),
caused him to suffer a shoulder injury related to vaccine administration. On March
16, 2020, the parties filed a stipulation, which the undersigned adopted as his
decision awarding compensation on the same day. 2020 WL 2125809 (Fed. Cl.
Spec. Mstr. Mar. 16, 2020).
On September 4, 2020, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $27,390.20 and
attorneys’ costs of $253.97 for a total request of $27,644.17.2 Fees App. at 12.
Pursuant to General Order No. 9, petitioner warrants that he has not personally
incurred any costs related to the prosecution of his case. Fees App. Ex. 1 at 2. On
September 7, 2020, respondent filed a response to petitioner’s motion. 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.” Response 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. Additionally, he recommends “that the Court exercise
its discretion” when determining a reasonable award for attorneys’ fees and costs.
Id. at 3. Petitioner filed a reply on September 8, 2020, reiterating his belief that the
requested fees and costs are reasonable.
* * *
Because petitioner received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … 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)).
Second, the court may make an upward or downward departure from the initial
2
Petitioner was previously awarded interim attorneys’ fees and costs in the amount of
$5,620.22 on September 23, 2019. Blackmon v. Sec’y of Health & Human Servs., No. 17-
1911V, 2019 WL 7560057 (Fed. Cl. Spec. Mstr. Sept. 23, 2019). The instant motion requests
reimbursement from time billed from August 18, 2017 until present.
2
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates of compensation for the work of his
counsel, Mr. Ramon Rodriguez, III: $383.00 per hour for work performed in 2017,
$394.00 per hour for work performed in 2018, $405.00 per hour for work
performed in 2019, and $422.00 per hour for work performed in 2020. Fees App.
Ex. 3 at 3. These rates are consistent with what Mr. Rodriguez has previously been
awarded for his Vaccine Program work, and the undersigned finds them to be
reasonable herein. See, e.g., Spinetti v. Sec’y of Health & Human Servs., No. 17-
951V, 2019 WL 5704797 (Fed. Cl. Spec. Mstr. Oct. 8, 2019).
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing records and, on the
whole, the billed hours are reasonable. Mr. Rodriguez has done a particularly good
job with the level of detail provided in his billing entries, which has allowed the
undersigned to assess the reasonableness of the hours billed. One small issue is that
Mr. Rodriguez has billed 0.1 hours on several occasions for review of the CMECF
3
generated notice for documents just filed by Mr. Rodriguez or his paralegal. In the
undersigned’s experience, billing any amount of time for review of the automated
notice generated by counsel’s own filing would be excessive. Upon review, a
$400.00 reduction is reasonable to offset this time billed.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$253.97 in attorneys’ costs. This amount is comprised of postage, photocopies, and
legal research costs. Fees App. Ex. 2 at 2. Petitioner has provided adequate
documentation supporting all of the requested costs, and they appear reasonable in
the undersigned’s experience. Petitioner is therefore awarded the full amount of
attorneys’ costs sought.
E. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $27,244.17 (representing
$26,990.20 in attorneys’ fees and $253.97 in attorneys’ costs) as a lump sum in the
form of a check jointly payable to petitioner and petitioner’s counsel, Mr. Ramon
Rodriguez, III.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
4