    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                            No. 14-636V
                                     Filed: September 28, 2016

* * * * * * * *                  *   *   **   *          UNPUBLISHED
DOUGLAS RETTMAN,                          *
                                          *              Special Master Gowen
               Petitioner,                *
                                          *              Attorneys’ Fees and Costs
v.                                        *
                                          *
SECRETARY OF HEALTH                       *
AND HUMAN SERVICES,                       *
                                          *
               Respondent.                *
                                          *
* * * * * * * * * * * * *
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioner.
Lara Ann Englund, United States Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS' FEES AND COSTS1

        On July 21, 2014, Douglas Rettman (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program.2 Petitioner alleged that he developed encephalopathy as
a result of receiving an influenza (“flu”) vaccine on November 13, 2012, and that he suffered the
residual effects of this injury for more than six months. Petition at ¶ 11. On August 30, 2016,
the parties filed a stipulation in which they stated that a decision should be entered awarding
compensation, and a Decision awarding compensation pursuant to the terms of the stipulation
was issued the same day.




1
 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and
Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14
days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).

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.
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        On September 7, 2016, petitioner filed an application for attorneys’ fees and costs,
requesting $39,930.00 in attorneys’ fees, $19,805.86 in attorneys’ costs, and $16.01 in
petitioner’s costs, for a total fees and costs request of $59,751.87. Petitioner’s (“Pet.”)
Application (“App.”) at 1-3. Respondent filed a response to petitioner’s application on
September 9, 2016, stating:

       Based on a survey of fee awards in similar cases and her experience litigating
       Vaccine Act claims, respondent asserts that a reasonable amount for fees and costs
       in the present case would fall between $26,000.00 to $39,000.00 . . . . Respondent
       therefore respectfully recommends that the special master exercise her discretion
       and determine a reasonable award for attorneys’ fees and costs within that range.

Resp’s Resp. at 3 (internal footnote omitted)(citing Smith v. Sec’y of Health & Human Servs.,
No. 10-486, 2012 WL 357284 (Fed. Cl. Spec. Mstr. Jul. 24, 2012); Mullins v. Sec’y of Health &
Human Servs., No. 12-069, 2014 WL 6735190 (Fed. Cl. Spec. Mstr. Nov. 13, 2014)). Petitioner
did not file a reply. This matter is now ripe for adjudication.

       For the reasons set forth below, the undersigned awards petitioner a total of $58,220.97 in
attorneys’ fees and costs.

  I.   Discussion

        Under the Vaccine Act, the 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(3)(1). In
the present case, petitioner was awarded compensation pursuant to a joint stipulation agreement.
Therefore, petitioner is entitled to an award of 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 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y or Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cl. 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 his
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the

                                                 2
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and 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). 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).

             i.   Hourly Rates

          Petitioner requests the following hourly rates for the attorneys who worked on this
matter:

          Clifford Shoemaker:3
                  2014—$400
                  2015—$415
                  2016—$430

          JCC:
                  2016—$55

          Renee Gentry:4
                2015—$400
                2016—$415

          Sabrina Knickelbein:5
                 2015—$350
                 2016—$363

       The requested rates are consistent with the rates the undersigned recently awarded to Mr.
Shoemaker and associates in Boylston v. Secretary of Health & Human Servs., No. 11-117V,
2016 WL 3080574 (Fed. Cl. Spec. Mstr. May 10, 2016). As explained in Boylston, the rates are
also consistent with the hourly forum rates the undersigned found appropriate in McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). Accordingly, the undersigned finds the requested rates reasonable.

            ii.   Hours Expended

       Petitioner requests compensation for 50.30 hours of work performed by Mr. Shoemaker,
1.00 hour of work performed by JCC, 32.26 hours of work performed by Ms. Gentry, and 16.45
hours of work performed by Ms. Knickelbein. See generally, Pet. App. 8-22. On review of the

3
  Mr. Shoemaker appears as “CJS” in the billing record. See Pet. App. at 8-15. (Petitioner’s application
is not separated into individual exhibits. All page citations are to the CM/ECF-generated pdf pagination).

4
    Ms. Gentry appears as “RJG” in the billing record. See Pet. App. at 15-18.

5
    Ms. Knickelbein appears as “SKK” in the billing record. See Pet. App. at 18-22.


                                                      3
billing record, the undersigned finds the majority of the hours expended reasonable. However,
Mr. Shoemaker billed numerous six-minute increments for time spent to “[r]eview pleading[s],”
entries which correspond with simple orders and notifications on the CM/ECF docket. See id. at
8-15. These billing entries total 1.50 hours in 2015 and 1.00 hour in 2016. Similarly, Ms.
Knickelbein billed a number of six-minute increments for reviewing non-PDF orders and other
simple CM/ECF filings, for a total of 1.10 hours in 2015 and 1.10 hours in 2016. See id. at 19-
22. Review of these simple filings did not warrant a full six minutes of time, and the
undersigned will reduce the time billed by half. Accordingly, Mr. Shoemaker’s time billed will
be reduced by .75 hours for 2015 and .50 hours for 2016, and Ms. Knickelbein’s time billed will
be reduced by .55 hours for 2015 and .55 hours for 2016.

        In addition, Ms. Gentry’s billing record for 2016 contains a total of 1.00 hour that spent
preparing and filing exhibits. Pet. App. at 16-17 (e.g. “prepared nfd EXH22-23”). Preparing and
filing exhibits is a paralegal task. See Mostovoy v. Sec’y of Health & Human Servs., No. 02-
10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). Attorneys may be
compensated for paralegal-level work, but at a rate that is comparable to what would be paid for
a paralegal. Doe/11 v. Sec’y of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at
*9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288
(1989)). “It is the nature of the work, not the title or education of the person performing it, that
determines whether it is legal, paralegal, or secretarial/clerical in nature.” Id. Pursuant to
McCulloch, an appropriate forum paralegal rate is $135 per hour. 2015 WL 5634323, at *21.
Accordingly, 1.00 hour of Ms. Gentry’s time billed in 2016 will be compensated at a rate of $135
per hour.

    b. Costs

        Petitioner requests a total of $19,805.86 in costs. Pet. App. at 23. The requested costs
consist primarily of medical record fees, photocopying, postage, and printing charges, and the
cost of obtaining an expert report. Id. The undersigned finds these requested costs reasonable.

         In addition, the requested costs include $8,124.37 in attorneys’ fees and costs incurred by
the Disparti Law Group, PA. Lawrence Disparti was petitioner’s original counsel in this case
and worked on the case from April 18, 2013, to January 8, 2015. Pet. App. at 23. Mr.
Shoemaker began working on the case in December 2014, and was substituted as counsel on
January 8, 2015. Mr. Disparti billed his work at a rate of $250 per hour and billed his paralegal
at a rate of $80 per hour. Id. at 36. The Disparti Law Group is located in Holiday, Florida. Id.
Mr. Disparti has been practicing law for at least thirteen years6 and a search of the court’s case
management system shows that he has had approximately nine cases in the Program. The
undersigned finds the rates requested by the Disparti Law Group reasonable. On review of the
Disparti Law Group’s billing record, the undersigned finds the majority of hours expended
reasonable, but will apply the same reductions as applied to Shoemaker, Gentry & Knickelbein,

6
 Petitioner did not submit information regarding Mr. Disparti’s experience, but a search of the Florida bar
member directory shows that Mr. Disparti was admitted to the Florida bar in 2003. See Find a Lawyer,
https://www.floridabar.org/wps/portal/flbar/home/directories.



                                                    4
above. Mr. Disparti billed several six-minute increments for reviewing simple CM/ECF filings,
for a total of 1.30 hours. Id. at 39-40. Accordingly, Mr. Disparti’s time will be reduced by .65
hours. Mr. Disparti also billed 1.00 hour for preparing and filing exhibits. Id. Accordingly, 1.00
hours of Mr. Disparti’s time will be compensated at the Disparti Law Group’s paralegal rate of
$80 per hour.

    II.   Conclusion

         The undersigned finds a total attorneys’ fees and costs award of $58,220.97 reasonable.
Respondent makes a general suggestion that “[b]ased on a survey of fee awards in similar cases
and her experience litigating Vaccine Act claims. . . a reasonable amount for fees and costs in the
present case would fall between $26,000.00 to $39,000.00.” Resp’s Resp. at 3. In support of the
suggested range, respondent cites Smith and Mullins, “similarly-postured” cases in which the
special masters awarded $33,357.27 and $38,500.00, respectively. Id. (citing Smith, 2012 WL
357284, Mullins, 2014 WL 6735190). The undersigned is impressed, however, that the number
of hours expended by counsel in preparing a given case has greater reference to individual
complexities of the case, rather than to general similarities of procedural history or other general
categories of cases. The time records of counsel provide the best evidence of hours expended.
As respondent states, special masters are accorded “wide discretion in determining the
reasonableness of a petitioner’s request for reasonable attorneys’ fees and costs,” and “may rely
on their prior experience in making reasonable fee determinations.” Id. at 2 (internal quotations
and citations omitted). Upon review of the documentation of the requested attorneys’ fees and
costs, and based on his experience with the Vaccine Act and its attorneys, the undersigned finds
a total of $58,220.97 reasonable.

          The undersigned awards attorneys’ fees and costs as follows:

             (1) A lump sum of $58,204.96 in the form of a check payable jointly to petitioner
                 and petitioner’s counsel of record, Clifford J. Shoemaker, of Shoemaker,
                 Gentry & Knickelbein, for attorneys’ fees and costs.

             (2) A lump sum of $16.01 in the form of a check payable to petitioner, for
                 petitioner’s costs.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment forthwith.7

          IT IS SO ORDERED.

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



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