         In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                              No. 14-254V
                                          (Not to be Published)

*****************************
KAILEY JOHNSON,             *
                            *
                            *                                             Special Master Corcoran
          Petitioner,       *
                            *                                             Dated: July 3, 2018
          v.                *
                            *
                            *                                             Attorney’s Fees and Costs.
SECRETARY OF HEALTH AND     *
HUMAN SERVICES,             *
                            *
          Respondent.       *
                            *
*****************************

Sean F. Greenwood, The Greenwood Law Firm, Houston, TX, for Petitioner.

Ilene C. Albala, U.S. Dep’t of Justice, Washington, DC, for Respondent.

     DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1

        On March 31, 2014, Charmaine Johnson filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”)2 on behalf of her then-
minor daughter, Kailey Johnson, now the named petitioner. An entitlement hearing was held on
October 12, 2017, in Washington, DC, and on March 23, 2018, I issued my decision denying
entitlement and dismissing the petition. ECF No. 97. Thereafter, Petitioner elected to accept
judgment. ECF No. 99.

1
  This Decision has been designated “not to be published,” which means I am not directing it to be posted on the Court
of Federal Claims’ website. However, it will nevertheless be posted on the United States Court of Federal Claims
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential
information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Decision will be available to
the public. Id.
2
 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
        Petitioner previously requested an interim award of attorney’s fees and costs, which I
partially awarded on June 6, 2017. ECF No. 64. Petitioner has now filed a final motion for
attorney’s fees and costs, asking for a total of $114,309.76 - $76,003.96 in attorney’s fees,
$12,345.66 in non-expert costs, $21,500.40 in expert witness costs, and $4,459.74 for costs
personally incurred by Petitioner. Mot. for Attorney’s Fees, at 1 (“Fees App.”) (ECF No. 19).

        Respondent reacted to the motion on June 19, 2018, representing that he believes the
statutory requirements for an award of attorney’s fees and costs are met in this case and deferring
to my discretion to determine a reasonable award. Response at 2-3, ECF No. 104.

         For the reasons stated below, I hereby GRANT IN PART Petitioner’s Motion, awarding
at this time final fees and costs in the total amount of $81,608.76.

                                   PROCEDURAL HISTORY

        A brief recitation of the procedural history of this case was provided in my decision
granting an interim award of fees and costs. See Johnson v. Sec’y of Health & Human Servs., No.
14-254V, 2017 WL 2927307 (Fed. Cl. Spec. Mstr. June 6, 2017). Since that time, Petitioner has
filed numerous exhibits and an entitlement hearing was held on October 12, 2017, in Washington,
DC, after which I issued my decision denying entitlement.

         Petitioner filed the present request for a final award of fees and costs on June 19, 2018. See
generally Fees App. Petitioner specifically requests that her attorney, Mr. Sean Greenwood,
receive $325.00 per hour for work performed in 2017 and $337.00 per hour for work performed
in 2018. Petitioner also requests that Mr. Greenwood’s associate, Ms. Kayleigh Smith, receive
$207.00 per hour for work performed in 2017 and $215.00 per hour for work performed in 2018.
Fees App. at 8, 10. As for costs, Petitioner requests $21,500.40 for the work of her expert witness,
Dr. Yehuda Shoenfeld, and $12,345.66 in costs associated with the hearing for this case, including
travel, lodging, and food. Exhibit 4 to Fees App. (“Ex. 4”) at 12-16. Finally, Petitioner requests
$4,459.74 in costs she personally incurred to travel to Washington, DC for the entitlement hearing.
Id.

                                            ANALYSIS

I.     Legal Standard Applicable to Fees and Costs Requests

        Unsuccessful petitioners may be awarded reasonable fees and costs if, in the special
master's exercise of discretion, such an award is appropriate (and, as in the case of successful
claims, the requested fees and costs are reasonable). I have in other decisions addressed at length
the legal standard applicable to evaluating the propriety of a fees request in an unsuccessful case

                                                  2
See, e.g, R.V. v. Sec'y of Health & Human Servs., No. 08–504V, 2016 WL 7575568 (Fed. Cl. Spec.
Mstr. Nov. 28, 2016). The primary factors to be considered under such circumstances are whether
(a) the petition was brought in good faith; and (b) there was reasonable basis for which the petition
was brought. Section 15(e)(1); Silva v. Sec'y of Health & Human Servs., 108 Fed. Cl. 401, 405
(2012). Determining whether a petition was filed in good faith is a subjective inquiry, and can be
established as long as the petitioner demonstrates an honest belief that he has suffered a
compensable injury. See Lemaire v. Sec'y of Health & Human Servs., No. 13–681V, 2016 WL
5224400, at *3 (Fed. Cl. Spec. Mstr. Aug. 12, 2016). A claim's reasonable basis involves
application of objective criteria which looks to the feasibility of the claim rather than to its
likelihood of success. Id. at 4.

        Assuming an award is appropriate, determining the amount of that award is a two-part
process. The first part involves application of the lodestar method – “multiplying the number of
hours reasonably expended3 on the litigation times a reasonable hourly rate.” Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2009) (quoting Blum v. Stenson, 465
U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to
take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is
considered applicable in most cases where a fee award is authorized by federal statute. Hensley v.
Eckerhart, 461 U.S. 424, 429-37 (1983).

        Although Petitioner was not successful in pursuing her claim, I find that the matter had
sufficient reasonable basis to justify a final award of fees. I do not doubt that the claim was brought
in a good-faith belief that the HPV vaccine had something to do with K.J.’s postural orthostatic
tachycardia syndrome (“POTS”). In addition, the claim possessed sufficient objective support to
meet the second half of the reasonable basis test (and Respondent has not argued otherwise).
Accordingly, a final award of attorney’s fees and costs is proper.



3
 An attorney’s reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant
forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at
*2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir.
2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly
qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera,
515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be
considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed
on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is
evident. Hensley, 461 U.S. at 434, 437.

In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)). This “Davis” exception is inapplicable here, however, because I have previously found the attorneys in
question should receive forum rates.


                                                           3
II.    Amounts Requested for Petitioner’s Attorneys

        I must now evaluate what the magnitude of Petitioner’s attorney’s fees award should be.
Whether a fee award is made on an interim basis or after a case’s conclusion, the requested sum
must be “reasonable.” Section 15(e)(1). Special masters may in their discretion reduce attorney
hours sua sponte, apart from objections raised by Respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.
201, 208-09 (2009); Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl.
1992) (special master has “wide discretion in determining the reasonableness” of attorney’s fees
and costs).

       First, I must determine the propriety of the rates requested for Mr. Greenwood and Ms.
Smith. As established in the interim fees decision, Mr. Greenwood and his associates are entitled
to forum rates set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). See, e.g., Hudson v. Sec’y of Health & Human Servs.,
No. 15-114V, 2016 WL 3571709, at *3 (Fed. Cl. Spec. Mstr. June 3, 2016); Garrett v. Sec’y of
Health & Human Servs., No. 14-17V, 2014 WL 6237497, at *7 (Fed. Cl. Spec. Mstr. Oct. 27,
2014); Harman v. Sec’y of Health & Human Servs., No. 13-796V, 2017 WL 1315704, at *3 (Fed.
Cl. Spec. Mstr. Mar. 15, 2017).

        This is the first chance I have had to consider the proposed 2018 rate for Mr. Greenwood
and Ms. Smith. I find Mr. Greenwood’s proposed rate of $337.00 per hour for 2018 work
reasonable because it falls within the special masters’ prescribed range for 2018 for attorneys with
similar experience.4 However, the rates requested for Ms. Smith require some adjustment. It
appears that Ms. Smith has billed different, increasing rates throughout 2017. Until May 2017, Ms.
Smith billed at the rate of $150.00 per hour. Thereafter, she billed one entry in May at $205.79 per
hour, and then the rest of her hours for 2017 at $207.00 per hour. See Ex. 4 at 1-10. Petitioner
indicates that this increase is due to the fact that in May 2017 Ms. Smith reached two years of
experience. Fees App. at 10. However, the fees schedule promulgated by the Office of Special
Masters makes no distinction between attorneys with experience under four years – therefore
reaching two years of experience is not a meaningful threshold in and of itself. Because the rate of
$207.00 exceeds the amount already awarded to Ms. Smith for work performed in 2017, I find that
Ms. Smith must be compensated for all work performed in 2017 at the rate of $150.00 per hour.
This determination is in line with what other special masters have determined concerning Ms.
Smith’s 2017 rate. See Prokopchuk v. Sec’y of Health & Human Servs., No. 16-881V, ECF No.
50, at 2. The rate of $215.00 per hour, however, is reasonable for work performed in 2018. This


4
    See Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2018, accessible at
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%202018.p
df.


                                                  4
results in a reduction of $8,319.60.5

        The hours expended on this matter also requires some adjustment. The billing statement
indicates that Ms. Smith accounted for 24 separate entries totaling 22.8 hours working on the
instant motion for attorney’s fees, with Mr. Greenwood spending an additional 0.8 hours working
on the motion. Ex. 4 at 10-12. Given that this motion is largely repetitive of both the interim fees
application filed in this case (ECF No. 61) and fees applications submitted by Mr. Greenwood’s
firm in other cases (see Prokopchuck, No. 16-881V, ECF No. 47; Holloway v. Sec’y of Health &
Human Servs., No. 16-919V, ECF No. 41), I find that the total hours billed in the preparation of
this motion to be excessive. I will instead only compensate Petitioner for half of the time Ms. Smith
billed preparing this motion, which I deem a reasonable amount of time to devote to a final fees
request similar to others requested by the same counsel, resulting in a reduction of $2,451.00.

III.     Amounts Requested for Costs

        Just as they are required to establish the reasonableness of requested fees, petitioners must
also demonstrate that requested litigation costs are reasonable. Perreira, 27 Fed. Cl. at 34; Presault
v. U.S., 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Such costs include expert time incurred while
working on a case. Fester, 2013 WL 5367670, at *16. 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 compensation. See, e.g., 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 compensation in the amount of $21,500 for the time of her expert, Dr.
Yehuda Shoenfeld, who charged an hourly rate of $500.00 per hour for 29 hours of work, plus an
additional 28 hours billed at half-time for travel form Tel-Aviv, Israel to Washington, DC to testify
at the entitlement hearing. Ex. 7, at 1. Given that Dr. Shoenfeld prepared three expert reports in
this matter and testified at the entitlement hearing, I find the number of hours he billed to be
reasonable. I have also found $500.00 per hour to be a reasonable rate for Dr. Shoenfeld’s time.
See Schultz v. Sec’y of Health & Human Servs., No. 16-539V, 2018 WL 1835104, at * 4 (Fed. Cl.
Spec. Mstr. Feb. 16, 2018). Other special masters have also recently compensated Dr. Shoenfeld
at $500.00 per hour. See Puckett v. Sec’y of Health & Human Servs., No. 15-929V, 2018 WL
2225067, at *3 (Fed. Cl. Spec. Mstr. April 17, 2018); Bello v. Sec’y of Health & Human Servs.,
No. 13-349V, 2017 WL 785692 (Fed. Cl. Spec. Mstr. Jan. 24, 2017).

       I find the rest of Petitioner’s requested costs, which are largely related to travel for Mr.
Greenwood, Ms. Smith, and Dr. Shoenfeld to Washington, DC, for the entitlement hearing, to be
reasonable, and will award them in full, for a total of $12,345.66. Petitioner also seeks to recover

5
 $8,287.8 reduced for 145.4 hours billed at $207.00 per hour and 0.57 hours billed at $205.79 per hour. Ms. Smith
billed her travel time from October 2017 at $75.00 per hour, one half of $150.00 per hour, and thus these hours require
no further reduction.

                                                          5
$4,459.74 in personal expenses. I find this amount to be reasonable with one exception - Petitioner
requests $430.00 in total as a client expense incurred from two phone consultations with Dr.
Svetlana Blitshteyn. Ex. 4 at 12. However, I have already compensated Petitioner for this expense
when I awarded her interim fees. Johnson, 2017 WL 2927307, at *4 (“Petitioner also requests
$430.00 for her consultation with Dr. Svetlana Blitshteyn . . . . Dr. Blitshteyn’s ‘quasi’ expert role,
as well as the fact that she will not testify in the matter, leads me to determine that it is appropriate
to reimburse her at this time . . . .”). Because Petitioner has already been reimbursed for this cost,
I must reduce the instant award of costs by $430.00.

                                                 CONCLUSION

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

                                 Amount Requested                         Reduction               Total Awarded
    Attorney’s Fees                     $76,003.96                        $10,770.60                  $65,233.36
    Attorney’s Costs                    $12,345.66                             $0.00                  $12,345.66
    Petitioner’s Costs                   $4,459.74                           $430.00                    $4,029.74

         I award a total of $77,579.02 in fees and costs as a lump sum in the form of a check jointly
payable to Petitioner and Petitioner’s counsel, Mr. Sean Greenwood, Esq., representing attorney’s
fees in the amount of $65,233.36, plus costs in the amount of $12,345.66. I also award a total of
$4,029.74 in costs as a lump sum in the form of a check payable to Petitioner.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of this decision.6


          IT IS SO ORDERED.
                                                                s/ Brian H. Corcoran
                                                                Brian H. Corcoran
                                                                Special Master




6
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.

                                                           6
