0In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: May 13, 2020

* * * * * * * * * * * * *  *                              UNPUBLISHED
PRISCILLA GONZALEZ, Parent,*
on behalf of A.W., a minor,*                              No. 17-192V
                           *                              Special Master Horner
         Petitioner,       *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                              Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Timothy M. Kotfila, Kotfila & Jordan, Springfield, MA, for Petitioner.
Jennifer L. Reynaud, United States Department of Justice, Washington, D.C., for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

       On February 9, 2017, Priscilla Gonzalez filed a petition for compensation pursuant to the
National Vaccine Injury Compensation Program on behalf of her minor child, A.W.2 42 U.S.C. §§
300aa-10 to 34 (2012). The petition alleged that A.W. suffered acute disseminated
encephalomyelitis (“ADEM”) or viral encephalitis as a result of her receipt of an influenza (“flu”)
vaccination on November 24, 2014. ECF No. 1. Following an order to show cause, I issued my
decision dismissing the petition for insufficient proof on January 9, 2020.

       On January 6, 2020, petitioner filed an application for attorneys’ fees and costs. ECF No.
41 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $21,118.98

1
 I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling
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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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).
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).
(representing $16,350.00 in fees and $4,768.98 in costs). Fees App. at 2. Counsel warrants that he
has attempted to secure a signed statement pursuant to General Order No. 9 but that petitioner has
not responded to his mail and has been unreachable via telephone. Counsel states, however, he has
advanced all costs and that petitioner was not charged any fees or costs. Respondent responded to
the motion on January 21, 2020, indicating that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case” and requests that I exercise my discretion
and determine a reasonable award for attorneys’ fees and costs. Resp. at 2–3 (ECF No. 43).
Petitioner did not file a reply thereafter.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

          The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings. Id. at 1348.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.

        Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to


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reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.

        a. Hourly Rates

        The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3

        Petitioner requests compensation for her counsel, Mr. Timothy Kotfila, at a rate of $300.00
per hour for all work performed in this case. Mr. Kotfila has been practicing law since 1995, giving
him approximately 21 years of experience when he began work on this case. Upon review, I find
that $300.00 per hour is a reasonable hourly rate for Mr. Kotfila’s work and shall award it herein.4

        b. Hours 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, 3 F.3d at 1521. 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.

       Upon review, I find the overall hours billed to be largely reasonable. However, I note that
Mr. Kotfila has billed an excessive amount of time for several minor tasks, such as review of
routine court orders (0.2 hours to review the notice of assignment/reassignment, appearance of
respondent’s counsel, scheduling orders, etc.) and other filings (e.g., 0.3 hours on 9/1/17 to review



3
 The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
4
 In finding Mr. Kotfila’s requested rate reasonable, I am not making a determination that he is or is not
entitled to forum rates, or that any other attorney in the Springfield, Massachusetts area is or is not
entitled to forum rates.

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respondent’s status report, 0.4 hours to review respondent’s motion for enlargement of time).5 To
account for these issues, I shall reduce the final award of attorneys’ fees by $600.00. Petitioner is
therefore awarded final attorneys’ fees of $15,750.00.

         c. Attorneys’ 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 $4,768.98 in attorneys’ costs. This amount comprises the cost of obtaining medical
records, the Court’s filing fee, and work performed by petitioner’s experts, Drs. Craig Schacher
and Edward Lewin. Petitioner has provided adequate documentation supporting the requested
costs and all appear reasonable in my experience. Petitioner is thus entitled to the full amount of
attorneys’ costs sought.

II.      Conclusion

       Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:

    Attorneys’ Fees Requested                                             $16,350.00
    (Reduction to Fees)                                                   - ($600.00)
    Total Attorneys’ Fees Awarded                                         $15,750.00

    Attorneys’ Costs Requested                                             $4,768.98
    (Reduction of Costs)                                                       -
    Total Attorneys’ Costs Awarded                                         $4,768.98

    Total Attorneys’ Fees and Costs                                       $20,518.98

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs, other
than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the
amount of $20,518.98, representing reimbursement for petitioner’s attorneys’ fees and costs,
in the form of a check payable to petitioner and her attorney, Mr. Timothy Kotfila.

       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.6

         IT IS SO ORDERED.



5
 These are merely examples and are not intended to represent an exhaustive list of all such occurrences of
overbilling.
6
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

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s/Daniel T. Horner
Daniel T. Horner
Special Master




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