             In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: October 2, 2017

* * * * * * * * * * * * * *
R.P., by his Parents and Natural Guardians *      UNPUBLISHED
CHRISTIAN PANAITESCU and                   *
MIHAELA PANAITESCU,                        *
                                           *      No. 16-753V
               Petitioners,                *
                                           *
v.                                         *      Chief Special Master Dorsey
                                           *
SECRETARY OF HEALTH                        *      Attorneys’ Fees and Costs;
AND HUMAN SERVICES,                        *
                                           *
               Respondent.                 *
                                           *
* * * * * * * * * * * * * *
Clifford Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioners.
Voris Johnson, U.S. Department of Justice, Washington, DC, for respondent.


                     DECISION ON ATTORNEYS’ FEES AND COSTS1

        On June 27, 2016, Christian and Mihaela Panaitescu (“petitioners”) filed a petition for
compensation under the National Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et seq.
(2012) (“Vaccine Act”), on behalf of their son, R.P., a minor. Petitioners filed an amended
petition on November 30, 2016. Petitioners allege that R.P. suffered from a motor planning
disorder a sensory processing disorder as a result of receiving a DTap vaccination on June 26,
2013. Am. Petition at ¶¶ 6 & 9.

    I.     Background




1 Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends 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). 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.
       On May 18, 2017, petitioners filed a Motion to Dismiss. Motion to Dismiss dated May
18, 2017. Petitioners’ case was dismissed that same day for insufficient proof. Decision
Dismissing Petition dated May 18, 2017.

        On August 18, 2017, petitioners filed a motion for attorneys’ fees and costs (“Pet’rs’
Mot.”). Petitioners request attorneys’ fees in the amount of $14,467.00 and costs in the amount
of $195.00. Pet’rs’ Mot. at 1. Pursuant to General Order #9, petitioners filed a signed statement
indicating that they incurred $400.46 in out-of-pocket expenses. Id. Thus, the total amount
requested is $15,062.46.

        Respondent filed a response to the motion on August 25, 2017. 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.” Id. 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. Respondent “respectfully recommends
that the Chief Special Master exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3.

         Petitioners have filed no reply. This matter is now ripe for adjudication.

   II.       Discussion

          Under the Vaccine Act, a special master shall award reasonable attorneys’ fees and
  costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
  When compensation is not awarded, the special master “may” award reasonable attorneys’
  fees and costs “if the special master or court determines that the petition was brought in
  good faith and there was a reasonable basis for the claim for which the petition was
  brought.” Id. at §15(e)(3). Respondent has not objected to petitioner’s application for fees
  and costs on the basis of a lack of good faith or reasonable basis. The undersigned finds
  that petitioners brought their petition in good faith and with a reasonable basis, and therefore
  will award reasonable attorneys’ fees and costs.

            A. Reasonable Attorneys’ Fees

         The Federal Circuit has approved use of 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, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
         Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
                                                   2
are “excessive, redundant, or otherwise unnecessary.” 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)). 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.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). A special master need not engage
in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v.
Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).

                       1. Reasonable Hourly Rate

       Petitioners’ counsel requests the following hourly rates:

                                     2016          2017
         Clifford Shoemaker          $430          $446
         Renee Gentry                --            $430
         Sabrina Knickelbein         $363/$3652    $378

       The requested rates for 2016 are within the ranges provided in McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, *16 (Fed. Cl. Spec. Mstr. Oct. 18,
2016), and the Office of Special Masters’ Fee Schedules (“Fee Schedule”).3 These rates have
previously been found to be reasonable and have been awarded. See, e.g., Mikkelson v. Sec’y of
Health & Human Servs., No. 15-867V, 2016 WL 6803786 (Fed. Cl. Spec. Mstr. Oct. 3, 2016);
Boylston v. Sec’y of Health & Human Servs., No. 11-117V, 2016 WL 3080574 (Fed. Cl. Spec.
Mstr. May 10, 2016). The undersigned also finds that the 2016 requested hourly rates are
reasonable and should be awarded in this case.

        However, the rates for 2017 require adjustment. Petitioners request that Mr. Shoemaker
receive an hourly rate of $446 for work performed in 2017. Pet’rs’ Mot. at 9-10. Mr.
Shoemaker has been practicing law for over 40 years and has significant experience in the
Vaccine Program. However, the 2017 Fee Schedule provides that attorneys with his years of
experience may be reasonably awarded $394 - $440 per hour. Due to his experience in the
Vaccine Program, the undersigned will award Mr. Shoemaker the upper limit of this range,
setting his hourly rate for work performed in 2017 at $440.

       Petitioners request that Ms. Gentry receive an hourly rate of $430 for work performed in

2
 Ms. Knickelbein requests an hourly rate of $365 for work performed from July 5, 2016 through
October 6, 2016, and she requests an hourly rate of $365 for work performed from October 31,
2016 through December 21, 2016. Pet’rs’ Mot. at 10-12.
3
 See United States Court of Federal Claims – OSM Attorneys’ Forum Hourly Rate Fee
Schedules, available at http://www.uscfc.uscourts.gov/node/2914 (last accessed September 29,
2017).
                                               3
2017. Pet’rs’ Mot. at 5. Ms. Gentry has been practicing law for approximately 22 years, and
according to the 2017 Fee Schedule she may be awarded $358 - $424 per hour. Ms. Gentry also
has significant experience in the Vaccine Program and will be awarded fees in the upper limit of
her range. The undersigned therefore reduces Ms. Gentry’s hourly rate to $424 for work
performed in 2017.

        These hourly rates for Mr. Shoemaker and Ms. Gentry for work performed in 2017 were
previously found to be reasonable and were awarded by Special Master Gowen in Bookey v.
Sec’y of Health & Human Servs., No. 13-26V, 2017 WL 2544892 (Fed. Cl. Spec. Mstr., May 18,
2017), in order to conform them to the 2017 Fee Schedule. The undersigned also conforms their
rates to the 2017 Fee Schedule by awarding these rates.

       Petitioners request that Ms. Knickelbein receive an hourly rate of $378 for work
performed in 2017. Pet’rs’ Mot. at 12-13. This rate is consistent with McCulloch and the 2017
Fee Schedule for an attorney of her experience. The undersigned also finds that this rate is
reasonable and should be awarded to Ms. Knickelbein.

                         2. Numerous and Excessive Intra-Office Communication

        The undersigned has previously found it reasonable to reduce the fees paid to petitioners
due to excessive billing and intra-office communication. See Bondi v. Sec’y of Health & Human
Servs., No. 15-749V, 2016 WL 1212890 (Fed. Cl. Spec. Mstr. Mar. 4, 2016) (reduced Mr.
Shoemaker’s, Ms. Gentry’s, and Ms. Knickelbein’s overall fee award due to billing for email
correspondence with each other); See also Ericzon v. Sec’y of Health & Human Servs., No. 10-
103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced CHCC’s overall fee award
by 10 percent due to excessive and duplicative billing). The undersigned and other special
masters have previously noted the inefficiency that results when multiple attorneys work on one
case and have reduced fees accordingly. See Sabella v. Sec’y of Health & Human Servs., 86 Fed.
Cl. 201, 209 (Fed. Cl. 2009).

       After carefully reviewing the billing records, the undersigned finds that counsel billed
excessive amounts of time for intra-office communication, including emails and meetings with
each other.4 For example, both Mr. Shoemaker and Ms. Knickelbein bill for numerous emails to
and from “Gretchen” and “Sabrina.”5 Pet’rs’ Mot. at 6-9, 11. Ms. Knickelbein also bills
multiple times for emails and meetings with Mr. Shoemaker. Pet’rs’ Mot. at 11-13. The
undersigned thus reduces the overall fee award due to excessive intra-office communication.

                         3. Vague Entries


4
    See Pet’rs’ Mot. at 6-13.
5
 No further identification or explanation is provided for Gretchen or Sabrina in petitioner’s
motion. The undersigned assumes they are paralegals in counsel’s firm.

                                                4
        The undersigned has previously found it reasonable to decrease an award of attorneys’
fees for vagueness. See Bondi, 2016 WL 1212890 (reduced Mr. Shoemaker’s Ms. Gentry’s and
Ms. Knickelbein’s overall fee award due to vague billing entries); See also Barry v. Sec’y of
Health and Human Servs., 12-39V, 2016 WL 6835542 (Fed. Cl. Spec. Mstr. Oct. 25, 2016)
(reduced a fee award by ten percent due to vague billing entries). It is well-established that an
application for fees and costs must sufficiently detail and explain the time billed so that a special
master may determine from the application and case file whether the amount requested is
reasonable. Bell v. Sec’y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez v.
Sec’y of Health & Human Servs., 2009 WL 2568468 (Fed. Cl. Spec. Mast. June 27, 2009).
Petitioners bear the burden of documenting the fees and costs claimed. Id. at *8.

        After reviewing the billing records, the undersigned finds that counsel has billed
numerous entries that are so vague that they do not provide enough information to determine
whether the task is compensable.6 For example, on August 25, 2016, Mr. Shoemaker bills for
“Emails to and from Gretchen,” “Email from Gretchen,” and “Emails to and from client” without
any further explanation. Pet’rs’ Mot. at 8. Similarly, Mr. Shoemaker bills for multiple phone
calls that only provide the caller’s name and provide no further detail regarding the person’s
identification or what the phone call was regarding. Pet’rs’ Mot. at 6-7, 10. The undersigned
thus reduces the overall fee award due to vague billing entries.

       For the above reasons, the undersigned will reduce petitioner’s entire fee award by ten
percent.

                B. Reasonable 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). Petitioners request a total
of $195.00 in costs. Pet’rs’ Mot. at 1. The requested costs consist of charges for obtaining
medical records and for photocopies. Pet’rs’ Mot. at 13-4. Petitioners also request
reimbursement in the amount of $400.46 for costs they paid out-of-pocket, which consist of the
filing fee and postage. Pet’rs’ Mot. at 3. Based on a review of the submitted expenses, the
undersigned finds that the requested costs are reasonable and awards them in full.

      III.      Conclusion

        The undersigned has reviewed the billing records submitted with petitioner’s request and
finds that petitioner is entitled to a reimbursement of attorneys’ fees and costs as follows:

             Attorneys’ Fees Requested:                                       $14,467.00
             - Adjustment to Mr. Shoemaker’s 2017 Rate                        - $57.00
             - Adjustment to Ms. Gentry’s 2017 Rate                           -     $1.50
             - 10% reduction (vagueness and intra-office communication)       - $1,440.85

6
    See Pet’rs’ Mot. at 1-5.

                                                  5
       Attorneys’ Fees Awarded                                             $12,967.65

       Attorneys’ Costs Awarded                                               $195.00

       Total Attorneys’ Fees & Costs Awarded                               $13,162.65

       Total Petitioners’ Out-of-Pocket Costs Awarded                         $400.46


Accordingly, the undersigned awards:

           1) A lump sum of $13,162.65, representing reimbursement for attorneys’ fees
              and costs, in the form of a check payable jointly to petitioner and petitioner’s
              counsel, Clifford Shoemaker; and

           2) A lump sum of $400.46, representing reimbursement for petitioner’s costs, in
              the form of a check payable to petitioner.

       The Clerk of the Court shall enter judgment in accordance herewith.7

IT IS SO ORDERED.

                                                    s/Nora Beth Dorsey
                                                    Nora Beth Dorsey
                                                    Chief Special Master




7
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
                                               6
