       In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                        Filed: January 23, 2019
                                        (Not to be published)

    * * * * * * * * * * *               *
                                      * *    *
                                        *
 JOSEPH MORAN,                          *
                                        *      No. 16-0538V
              Petitioner,               *
                                        *
 v.                                     *      Special Master Oler
                                        *
 SECRETARY OF HEALTH                    *      Interim Attorneys’ Fees and Costs;
 AND HUMAN SERVICES,                    *      Duplicative Billing;
                                        *      Administrative Tasks; Expert Costs.
              Respondent.               *
                                        *
 * * * * * * * * * * * * * *
Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.

                   DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

Oler, Special Master:

          On May 2, 2016, Joseph Moran (“Petitioner”) filed a petition for compensation in the
    National Vaccine Injury Compensation Program (“the Program”), 2 alleging that he developed
    rheumatoid arthritis (“RA”) caused or significantly aggravated by his receipt of an influenza (“flu”)
    vaccination on October 17, 2013. ECF No. 1 at 1. Petitioner now requests an award of interim
    attorneys’ fees and costs.


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  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to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, 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 (“Vaccine Act”), 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
           I.      The Instant Motion

          On June 13, 2018, Petitioner filed an application for interim attorneys’ fees and costs (“Interim
    Motion”), requesting $30,398.00 in attorneys’ fees for her counsel of record, Andrew D. Downing
    of Van Cott & Talamante, PLLC (“VCT”), and $21,199.68 in attorneys’ costs, for a total of
    $51,597.68. See Interim Motion, ECF No. 40 at 1; see also Ex. A at 38, 67, attached as ECF No. 40-
    1 (hereinafter referred to as “Ex. A”).3 A review of the Interim Motion does not reflect that Petitioner
    herself has borne any out-of-pocket expenses up to this point in the litigation. See generally Interim
    Motion.

           Respondent filed a response to Petitioner’s Interim Motion on June 27, 2018. Respondent’s
    Response, ECF No. 41. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
    contemplates any role for [R]espondent 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 that the statutory
    requirements for an award of attorney’s fees and costs are met in this case.” Id. at 2. Additionally,
    he “respectfully recommends that [I] exercise [my] discretion and determine a reasonable award" for
    interim attorneys’ fees and costs. Id. at 3.

         For the reasons discussed below, I hereby GRANT IN PART Petitioner’s Interim Motion,
    awarding $25,838.30 in attorneys’ fees and $20,153.18 in costs, for a total of $45,991.48.

           II.     Legal Standard for Interim Attorneys’ Fees and Costs
       The Federal Circuit has held that an award of interim attorneys’ fees and costs is
permissible under the Vaccine Act. Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372
(Fed. Cir. 2010); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). The
Federal Circuit has stated, “Congress made clear that denying interim attorneys' fees under the
Vaccine Act is contrary to an underlying purpose of the Vaccine Act.” Cloer v. Sec’y of Health &
Human Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).

        In Avera, the Federal Circuit stated, “[i]nterim fees are particularly appropriate in cases
where proceedings are protracted and costly experts must be retained.” 515 F.3d at 1352. Likewise,
in Shaw, the Federal Circuit held that “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.” 609 F.3d at 1375. However, Avera did not
exclusively define when interim fees are appropriate; rather, it has been interpreted to allow
special masters discretion. See Kirk v. Sec’y of Health & Human Servs., No. 08-241V, 2013
WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Sec’y of Health & Human
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though
it has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated these criteria as
possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; Al-Uffi v. Sec’y of Health

3
  Petitioner’s claim originated while Petitioner’s attorney, Mr. Downing, was employed at Hennelly and
Steadman (“H&S”). See Interim Motion, ECF No. 40 at 3; see also Ex. A at 67. After the merger of H&S
with VCT, VCT continued the invoicing of the matter. As a result, Petitioner has submitted a second
invoice from H&S for the initial period during which Mr. Downing was employed by that firm. Id.
                                                      2
& Human Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30, 2015).

        The undue hardship inquiry looks at more than just financial involvement of a petitioner; it
also looks at any money expended by petitioner’s counsel. Kirk, 2013 WL 775396, at *2
(finding “the general principle underlying an award of interim fees was clear: avoid working a
substantial financial hardship on petitioners and their counsel.”). As his Interim Motion points out,
by the time an entitlement hearing may be scheduled in this case, Petitioner, and his counsel, will
have been litigating this claim for more than two years4. ECF No. 40 at 4. Thus, I find it reasonable
to award interim attorneys’ fees and costs at this juncture to avoid undue hardship for Petitioner’s
counsel.

            III.   Reasonable Attorneys’ Fees

        If interim fees are deemed appropriate, a petitioner is eligible for an interim award of
reasonable attorneys’ fees and costs if the special master finds that a petitioner brought his/her
petition in good faith and with a reasonable basis. §15(e)(1); Avera, 515 F.3d at 1352; Shaw, 609
F.3d 1372 (Fed. Cir. 2010); Woods, 105 Fed. Cl. at 154; Friedman v. Sec’y of Health & Human
Servs., 94 Fed. Cl. 323, 334 (Fed. Cl. 2010); Doe 21 v. Sec’y of Health & Human Servs., 89 Fed. Cl.
661, 668 (Fed. Cl. 2009); Bear, 2013 WL 691963, at *5; Lumsden v. Sec’y of Health & Human Servs.,
No. 97-588V, 2012 WL 1450520 at *4 (Fed. Cl. Spec. Mstr. March 28, 2012). Respondent did not
raise any objection to the good faith or reasonable basis for the claim. As there is no other reason to
deny the award of interim fees and costs, I will award Petitioner’s reasonable interim attorneys’ fees
and costs in this instant decision.

        While Respondent did not contest the billing rate or specific entries, the special master has
the discretion to reduce awards sua sponte, independent of enumerated objections. Sabella v. Sec’y
of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 303 (Fed. Cl. 2008), aff’d, No. 99-537V, 2008 WL 2066611 (Fed. Cl.
Spec. Mstr. Apr. 22, 2008).

                   a. Requested Hourly Rates5
       Petitioner requests compensation for her attorneys, Mr. Andrew Downing and Mr. Justin N.
Redman. Petitioner requests the following hourly rates for work performed by each attorney from
2014 to 2018:

               Mr. Downing          Mr. Redman
     2014      $350.00              n/a
     2015      $350.00              $195.00
     2016      $350.00              n/a
     2017      $375.00              n/a

4
    On November 11, 2018, Petitioner filed a Motion for Decision on the Record. ECF No. 47.
5
 Petitioner’s invoice includes requested hourly rates by year for attorneys and paralegals at VCT. Ex. A at
38. Mr. Downing’s hourly rate for work performed while at H&S is included in the attached H&S invoice.
Id. at 66.
                                                      3
   2018    $385.00               n/a

Petitioner also requests that paralegals of VCT, Ms. Danielle P. Avery (“Ms. Avery” or “DPA”) and
Mr. Robert W. Cain (“Mr. Cain” or “RWC”), be compensated for work performed from 2014-2018
at rates varying from $100.00 per hour to $135.00 per hour, based on the year and the individual
paralegal. See Interim Motion at 2.

                b. Hourly Rates Awarded

                         i. Mr. Downing
        Mr. Downing’s requested hourly rates for work performed between 2014-2017 have been
previously found to be reasonable by Special Master Gowen in his reasoned decision, Bales, on behalf
of J.B.A. v. Sec’y of Health and Human Servs., No. 15-882V, 2017 WL 2243094 (Fed. Cl. Spec. Mstr.
Apr. 26, 2017). Given that the hourly rates discussed in that case have been awarded on numerous
occasions, these identical rates for 2014-2017 will be awarded in full in this instant application. See
Bognar v. Sec’y of Health and Human Servs., No. 16-726V, 2017 WL 1376437 (Fed. Cl. Spec. Mstr.
Mar. 22, 2017); Semanisin v. Sec’y of Health and Human Servs., No. 15-1395V, 2017 WL 1398567
(Fed. Cl. Spec. Mstr. Mar. 21, 2017). Mr. Downing’s request for an increase in his hourly rate for
2018 also appears to be reasonable and has been awarded by this Court in several instances. See
Nicholas Zumwalt, on behalf of his minor child, L.Z. v. Sec’y of Health and Human Servs., No. 16-
994V, 2018 WL 6975184 (Fed. Cl. Spec. Mstr. Nov. 27, 2018); Otto v. Sec’y of Health and Human
Servs., No. 16-1144V, 2018 WL 5782873 (Fed. Cl. Spec. Mstr. Oct. 5, 2018). Thus, I find Mr.
Downing’s hourly rates for 2014-2018, as submitted by Petitioner, to be reasonable and will award
them as requested.

                         ii. Mr. Justin N. Redman

       Mr. Justin N. Redman’s requested hourly rate for 2015 has also been previously found
reasonable and awarded by other Special Masters and will be awarded in full in this present case.

                         iii. Paralegal rates

        VCT’s paralegal hourly rates range, listed above, has been previously awarded in Bales, and
I similarly find it to be reasonable in this case. Bales, 2017 WL 2243094, at *4.

                         iv. Summary of Hourly Rates Awarded

       In light of the above, the hourly rates to be awarded in this instant application are as follows:

           Mr. Downing           Mr. Redman
   2014    $350.00               n/a
   2015    $350.00               $195.00
   2016    $350.00               n/a
   2017    $375.00               n/a
   2018    $385.00               n/a
                                                  4
       Accordingly, Petitioner’s requested hourly rates for Mr. Downing, his associates, and
paralegals are awarded in full.

                  c. Reduction of Billable Hours6
        Based on my review of the billing records submitted with Petitioner’s Interim Motion (see
generally Ex. A), I find that the VCT firm billed hours that I consider “excessive, redundant, or
otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 3 F.3d at 1521 (Fed. Cir.
1993). For example, the time entries submitted with Petitioner’s Interim Motion reflects that
attorneys and/or paralegals of VCT billed for performing administrative tasks such as updating
internal files and electronically filing documents.7 Moreover, many of the administrative billing
entries also reflect instances of block billing, wherein attorneys and/or paralegals of VCT billed for
multiple tasks in a single entry, thus co-mingling time that is not compensable with time that is
compensable.8 For such entries, it is impossible to determine the precise portion of the time billed
that should be compensated. I note that it is counsel’s burden to document the fees claimed. See
Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *8 (Fed. Cl.
Spec. Mstr. July 29, 2009); see also Broekelschen v. Sec’y of Health & Human Servs., 2008 U.S.
Claims LEXIS 399, at *13-14 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (reducing a petitioner’s attorneys’
fees award and criticizing counsel in that case for block billing). Indeed, the Vaccine Program’s
Guidelines for Practice state as follows: “[e]ach task should have its own line entry indicating the
amount of time spent on that task. Lumping together several unrelated tasks in the same time entry
frustrates the court’s ability to assess the reasonableness of the request.”9


6
 While not explicitly discussed below, Mr. Downing’s billing entries from H&S are included in the total
attorneys’ fees awarded to Petitioner. Ex. A at 66. I find the attorneys’ fees and hours billed by Mr.
Downing during his time with H&S to be reasonable. Id. at 66-67.
7
 For example, the following billing entries reflect attorneys and/or paralegals of VCT billing time for non-
compensable administrative tasks such as: (1) “Updat[ing] New Case Intake Form” (billing entries of RWC
on 6/24/2015; 10/12/2015; 11/4/2015; 11/10/2015; 11/18/2015; 1/18/2016; 2/2/2016; 2/23/2016; 3/2/2016
9/12/2016; 9/22/2016; 10/28/2016); (2) processing payments (billing entries of DPA from 2/5/2016;
2/8/2016; 2/12/2016; 2/15/2016; 3/2/2016; 9/16/2016; 10/24/2016; ); (3) “review file” (billing entries of
DPA from 1/27/2016). See Ex. A at 1-20.

The billing entries mentioned above are examples and are not exhaustive; they provide a mere sampling of
the many non-compensable administrative tasks billed by Mr. Downing and his paralegals.
8
 See generally Ex. A at 1-20, which lists the billing entries cited at footnote 5, above, collectively reflecting
attorneys and/or paralegals block billing for compensable tasks with non-compensable tasks.
9
 Guidelines for Practice Under the National Vaccine Injury Compensation Program ("Guidelines for
Practice") at 67 (revised Nov. 5, 2018) found at:
https://www.uscfc.uscourts.gov/sites/default/files/18.11.05%20Vaccine%20Guidelines.pdf (last visited on
December 10, 2018).

                                                        5
        I additionally find that the billing invoices reveal numerous billing entries reflecting instances
of duplicative billing where both paralegals, and in some instances Mr. Downing and his paralegals,
billed time for reviewing the same filing. The billing invoices in fact consistently reflect such
duplicate entries where several individuals completed, reviewed, or processed the same notices,
documents, or orders. 10 It has been a long-standing practice in the Vaccine Program to reduce
attorneys’ fees for such similar duplicative billing entries. See, e.g., Turkupolis v. Sec’y of Health &
Human Servs., No. 10-351V, 2015 WL 393343, at *5 (Fed. Cl. Spec. Mstr. Jan. 9, 2015) (reducing
fees and noting a pattern of billing 0.10 attorney hours for review of all filings, regardless of the
filing’s length or complexity); Z.H. v. Sec’y of Health & Human Servs., No. 16-123V, 2018 WL
1835210, at *3 (Fed. Cl. Spec. Mstr. Mar. 6, 2018) (reducing fees where “[m]ultiple attorneys
reviewed the same orders and notifications and all billed time for doing so”). Furthermore, I find
that the billing invoices for Ms. Avery contain numerous instances of excessive billing for receiving
or reviewing filings or records. Ex. A at 17-32. I do not find the standard 0.2 hours billed by Ms.
Avery to be a reasonable assessment of the time required to conduct many of these tasks, such as
receiving and reviewing Court notifications, ECF filings, Notice of Reassignments, etc. Id.
Accordingly, I find Ms. Avery’s invoice of hours spent performing paralegal duties to be excessively
inflated.

        Therefore, for the reasons outlined above, I will reduce the total award of Petitioner’s
requested attorneys’ fees of $30,398.00 by 15%. This results in a reduction of Petitioner’s Vaccine
Act attorneys’ fees award by $4,559.70.11

          Therefore, Petitioner is awarded attorneys’ fees in the amount of $25,838.30.12

           IV.    Reasonable Attorneys’ Costs
        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). Reasonable costs include the costs of
obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health
& Human Servs., 10-243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When
petitioners fail to carry their burden, such as by not providing appropriate documentation to
substantiate a requested cost, special masters have refrained from awarding such costs. See, e.g.,

10
  These entries are described as receiving, reviewing, and/or processing: (1) medical records (billing entries
of 11/4/2015; 11/9/2015; 11/18/2015; 12/1/2015; 1/18/2016; 1/19/2016; 3/15/2016; 9/22/2016; 10/24/2016;
10/28/2016); (2) email client (billing entry of 3/29/2016). See Ex. A at 1-20.

The billing entries mentioned above are examples and are not exhaustive; they provide a mere sampling of
the numerous duplicative tasks billed by the paralegals and, in several instances, Mr. Downing.
11
     Attorneys’ fees requested                                    =       $30,398.00
     Percentage of reduction (15%)                                =        0.15
     15% reduction amount                                         =       $4,559.70
12
     Attorneys’ fees requested                                    =       $30,398.00
     15% reduction                                                =       ($4,559.70)
      Total awarded Vaccine Act attorneys’ fees                   =       $25,838.30

                                                      6
Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl.
Spec. Mstr. June 30, 2005).

         Petitioner requests $21,199.68 in attorneys’ costs. Ex. A at 37, ECF No. 40-1. The requested
costs herein can be sorted into two different categories: (1) expert costs and (2) miscellaneous case
costs, to include costs for filing fees, obtaining medical records, and mailing costs.

                 a. Expert costs for Petitioner’s expert, Dr. Thomas Zizic

                          i. Expert Hourly Rate

        Petitioner requests costs for the work performed by Dr. Zizic as an expert in this case. Dr.
 Zizic billed at a rate of $400 per hour for a total of $18,860. See Ex. A at 35-37, 61-64. In examining
 those billing entries and taking into account Dr. Zizic’s qualifications and experience in the Program,
 I find Dr. Zizic’s requested rate to be reasonable. Dr. Zizic’s rate has been previously deemed
 reasonable by other special masters in the Program. See Bourche v. Sec’y of Health and Human
 Servs., No. 15-232V, 2017 WL 2480936 (Fed. Cl. Spec. Mstr. May 11, 2017). Accordingly, the
 hourly rate of $400 per hour requested for Dr. Zizic’s expert costs will be awarded in full.

                          ii. Time Expended by Expert

        Petitioner submitted two invoices detailing the work Dr. Zizic performed in this case. The first
 invoice includes the work Dr. Zizic performed for the initial expert report, totaling 36.75 hours. Ex.
 A at 63. The second invoice presumably reflects the work Dr. Zizic completed for the rebuttal expert
 report, totaling 10.4 hours. Id. at 64. Combined, Dr. Zizic’s time spent on Petitioner’s case, as
 invoiced, was 47.15 hours. Id. at 63-64.

       Dr. Zizic’s first invoice includes detailed entries illustrating the type of task completed and the
 time expended on each task. Ex. A at 61-63. Dr. Zizic spent a total of 10.9 hours reviewing 582
 pages of medical records, 2.75 hours conducting literature search, 13.15 hours researching and
 reviewing 193 pages of medical literature, and 10.6 hours drafting his report. Id. Dr. Zizic’s expert
 report was 22 pages in length, of which only 7 pages contains substantive materials. ECF No. 16.
 The remaining portion of the report outlines a chronology of the medical history of Petitioner. Id. I
 find Dr. Zizic’s total time spent on drafting the first report, 34.95 hours, to be slightly inflated. I find
 the remaining 1.8 hours spent on scanning articles and correspondence, however, to be a reasonable
 amount of time spent on such tasks.

       The entries of Dr. Zizic’s second invoice, while presumably just as detailed and regarding the
 second expert report, cannot be discerned because Petitioner photocopied the invoice with the proof
 of payment to Dr. Zizic directly covering the majority of the entries. While I still find costs associated
 with the production of this second report to be reasonable, it is difficult to ascertain specifically
 whether the hours billed for each task were reasonable.

       Accordingly, due to the slightly excessive amount of time billed for the two reports, I reduce
 the hours awarded for Dr. Zizic’s expert report by 5%, to 44.79 hours. I award Petitioner a total of


                                                     7
 $17,916.00 in expert costs.13

                   b. Miscellaneous case costs14

        I have reviewed all other costs totaling $2,339.68 incurred by the VCT firm, including costs
 for obtaining medical records, filing fees, and mailing costs. See Ex. A at 37. I find most of those
 expenses to be reasonable. However, the firm has also included charges for incoming and outgoing
 faxes. Special Master Moran articulated in Bourche that “the operation of a fax machine is part of a
 law firm’s general overhead and, therefore, separate costs should not be charged.” See Bourche, 2017
 WL 2480936; See also Muccala v. Sec’y of Health and Human Servs., No. 17-548V, 2018 WL
 5024014 (Fed. Cl. Spec. Mstr. Jul. 27, 2018). I agree that billing for the use of fax is not appropriate,
 especially since other less expensive methods of correspondence are available. Therefore, I reduce
 the fees incurred by $102.50.

                   c. Summary of Attorneys’ Costs Awarded

       Based upon the above analysis, calculating the reductions for attorneys’ costs results in the
following adjustments:

      Attorneys’ costs requested:                        =      $21,199.68
      Reductions for Dr. Zizic’s expert costs:           =      ($944.00)
 _____Reduction for fax usage                            =      ($102.50)
      Total Attorneys’ costs awarded:                           $20,153.18

           V.      Conclusion

        Accordingly, in the exercise of the discretion afforded to me in determining the propriety of
 interim fees awards, and based on the foregoing, I GRANT IN PART Petitioner’s Interim Motion,
 as follows:

                          Amount Requested            Reduction                Total Awarded

      Attorneys’ Fees     $30,398.00                  $4,559.70                $25,838.30
      Litigation Costs    $21,199.68                  $1,046.5                 $20,153.18

13
     Total hours invoiced                                =      47.15 hours
     Percentage of reduction (5%)                        =      0.05
     Total Hours Awarded                                 =      44.79 hours

     Total hours awarded                                 =      44.79 hours
     Hourly rate awarded                                 =      $400/hour
     Total Expert Costs Awarded                          =      $17,916.00


14
  While not explicitly discussed below, Mr. Downing’s billing entries from H&S are included in the total
attorneys’ costs awarded to Petitioner. Ex. A at 67. I find the attorneys’ costs of $96.99 billed by Mr.
Downing during his time with H&S to be reasonable. Id. at 67.
                                                     8
                                                                  Grand Total: $45,991.48

        I therefore award a total of $45,991.48 in interim fees and costs as a lump sum in the form of
a check jointly payable to Petitioner and Petitioner’s counsel of record, Mr. Andrew D. Downing,
Esq., representing attorneys’ fees in the amount of $25,838.30, plus costs in the amount of $20,153.18.

     In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court
 SHALL ENTER JUDGMENT in accordance with this decision.15


        IT IS SO ORDERED.

                                                                  s/ Katherine E. Oler
                                                                   Katherine E. Oler
                                                                   Special Master




15
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
                                                       9
