    In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                       Filed: August 2, 2019

* * * * * * * * * * * * *  *
SHIRLEY FRAZIER,           *                                    UNPUBLISHED
                           *
         Petitioner,       *                                    No. 16-714V
                           *                                    Special Master Gowen
v.                         *
                           *                                    Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Justin G. Day, Greg Coleman Law, PC, Knoxville, TN, for Petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for Respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On April 22, 2019, Shirley Frazier (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 63). For the reasons
discussed below, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs and
awards a total of $34,195.20.

    I.        Procedural History

        On June 20, 2016, Petitioner filed a petition in the National Vaccine Injury Compensation
Program.2 Petitioner alleged that an influenza vaccination she received on November 13, 2015,
caused her to suffer Guillain-Barré syndrome. On September 21, 2018, the parties filed a
stipulation, which I adopted as my Decision awarding damages on the same day. Decision, ECF

1
  The undersigned intends 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, 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 Because this unpublished ruling contains a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).
2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine
Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
No. 59.

        On April 22, 2019, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for her attorney, Mr. Justin Day, in the total amount of $39,041.50,
representing $27,540.00 in attorneys’ fees and $11,501.50 in costs. Fees App. at 8, 12. Respondent
reacted to the fees motion on May 1, 2019, indicating that “Respondent is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case” and recommending
that “the special master exercise his discretion and determine a reasonable award for attorneys’
fees and costs.” Response at 2-3 (ECF No. 63). Petitioner did not file a reply thereafter. The matter
is now ripe for adjudication.

    II.     Analysis

        Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation, but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). In this case, Petitioner was awarded
compensation pursuant to a stipulation, and therefore she is entitled to an award of reasonable
attorneys’ fees and costs.

         Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. 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. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

                a. Attorneys’ Fees

        Petitioner requests the following rates of compensation for her attorneys: $450.00 per hour
for all work performed by Mr. Justin Day, $500.00 per hour for all work performed by Mr. Adam
Edwards, and $400.00 per hour for all work performed by Ms. Celia Hastings. Fees App. at 9.
These rates require adjustment.

        The matter of proper rates for the work of counsel was previously discussed in counsel’s
first Vaccine Program case (the instant case is counsel’s second completed case, with two more
cases remaining active). See Winters v. Sec’y of Health & Human Servs., No. 17-887V, slip op. at
3-5 (Fed. Cl. Spec. Mstr. May 17, 2019). In Winters, the special master compared counsel’s
requested rates with those set forth in the Office of Special Masters Attorneys’ Forum Hourly Rate
Schedules for the years 2015-2018.3

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.p
df. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202019.p

                                                     2
       First, concerning the rates for Mr. Day, the special master noted that he has been barred
since 2014, placing him within the range of 0-4 years of experience for 2016 and the 4-7 years’
range for 2017 and 2018. Thus, based upon the factors discussed in McCulloch, including Mr.
Day’s lack of experience in the Vaccine Program and overall lack of experience, the special master
awarded Mr. Day $200.00 per hour for work performed in 2016, $230.00 per hour for work
performed in 2017, and $240.00 per hour for work performed in 2018.

        Next, the special master reached a similar conclusion for the rates of Mr. Edwards. The
special master noted that Mr. Edwards has been licensed to practice law since 2004, placing him
within the 11-19 years of experience range. However, Mr. Edwards is not admitted in the Court of
Federal Claims and does not appear to have any Vaccine Program experience beyond assisting in
cases in which Mr. Day is the counsel of record. Thus, the special master awarded Mr. Edwards
the following rates: $315.00 per hour for work performed in 2016; $330.00 per hour for work
performed in 2017, and $345.00 per hour for work performed in 2018.

       Finally, concerning the rates of Ms. Hastings, the special master noted that she has been
licensed to practice law since 1979, placing her in the highest experience range on the fee
schedules. Thus, her overall experience as a lawyer supports her higher requested rates, although
this was mitigated by the fact that she also is not admitted in the Court of Federal Claims and lacks
prior Vaccine Program experience. The special master thus awarded her $385.00 per hour for work
performed in 2016 and $400.00 per hour for work performed in 2017 and 2018.

        The undersigned finds the special master’s analysis and reasoning in Winters to be sound
and will therefore adopt the same rates for the instant case. Additionally, Petitioner has not
provided any additional information to support rates above what was previously awarded in
Winters. Accordingly, the following reductions shall be made to the final award of fees: $1,871.00
for adjustments to Mr. Day’s rate,4 $2,617.50 for adjustments to Mr. Edwards’ rate,5 and $81.00
for adjustments to Ms. Hastings’ rate6 for a total reduction of $4,569.50.

        Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter (64.15) appear to be reasonable. The entries are reasonable and accurately describe
the work being performed and the length of time it took to perform each task. Respondent also has
not identified any particular entries as being objectionable. Therefore, Petitioner is entitled to final
attorneys’ fees of $22,970.50.

                    b. Attorneys’ Costs

df. 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).
4
 ($450.00 - $200.00 = $250.00 * 1.1 hours in 2016 = $275.00) + ($450.00 - $230.00 = $220.00 * 4.2 hours in 2017
= $924.00) + ($450.00 - $240.00 = $210.00 * 3.2 hours in 2018 = $672.00) = $1,871.00.
5
 ($500.00 - $315.00 = $185.00 * 9.6 hours in 2016 = $1,776.00) + ($500.00 - $330.00 = $170.00 * 4.95 hours in
2017 = $841.50) = $2,617.50.
6
    ($400.00 - $385.00 = $15.00 * 5.4 hours in 2016) = $81.00.

                                                          3
        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). Petitioner requests total
attorneys’ costs in the amount of $11,501.50. Fees App. at 12. This amount is comprised of
acquiring medical records, postage, the Court’s filing fee, Petitioner’s life care planner, and the
mediation services of former Chief Special Master Gary Golkiewicz. The undersigned has
reviewed the submitted documentation supporting these costs and finds that two reductions are
necessary. First, Petitioner has failed to provide adequate documentation supporting “Medical
Records/CIOX Medical Records” incurred on August 3, 2016 in the amount of $35.50. Second,
Petitioner requests $1,841.30 for former Chief Special Master Golkiewicz’s mediation work plus
$241.30 for one half of his airline ticket. Fees App. at 12. However, a careful reading of the former
Chief Special Master’s invoice indicates that the billed amount of $1,841.30 is inclusive of airfare
costs. Fees App. at 27 (indicating fees of $1,600.00 and costs of $241.30 for a total of $1,841.30).
To avoid a double-recovery for the airfare costs, the undersigned shall reduce the award of costs
by $241.30.

        The remainder of the costs appear reasonable in the undersigned’s experience and have
been supported with adequate documentation. Therefore, Petitioner is entitled to a final award of
costs of $11,224.70.

      III.   Conclusion

       In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:

    Attorneys’ Fees Requested                                                     $27,540.00
    (Reduction of Fees)                                                          - ($4,569.50)
    Total Attorneys’ Fees Awarded                                                 $22,970.50

    Attorneys’ Costs Requested                                                    $11,501.50
    (Reduction of Costs)                                                          - ($276.80)
    Total Attorneys’ Costs Awarded                                                $11,224.70

    Total Attorneys’ Fees and Costs                                               $34,195.20

       Accordingly, I award a lump sum in the amount of $34,195.20, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and her attorney, Mr. Justin Day.7



7
  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
        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.8

        IT IS SO ORDERED.


                                                     /s/Thomas L. Gowen
                                                     Thomas L. Gowen
                                                     Special Master




8
 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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