                 In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                            No. 13-737V
                                         (Not to be Published)


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                            *
CHRISTINE SHEA,             *
                            *                                            Filed: December 10, 2015
                Petitioner, *
                            *
           v.               *                                            Attorney’s Fees and Costs;
                            *                                            Influenza (“Flu”) vaccine;
SECRETARY OF HEALTH         *                                            Intractable headaches.
AND HUMAN SERVICES,         *
                            *
                Respondent. *
                            *
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                                  DECISION GRANTING AWARD OF
                                   ATTORNEY’S FEES AND COSTS1

Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner.

Ryan Pyles, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

       On September 25, 2013, Christine Shea filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (the “Vaccine Program”), alleging that she
developed intractable headaches after receiving the influenza vaccine on October 13, 2010.2 On
June 15, 2015, the Parties filed a stipulation regarding an award for Petitioner (ECF No. 30), and

1
  Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of
the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
§ 205, 116 Stat. 2899, 2913 (Dec. 17, 2002 (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that 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). Otherwise, the 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”).
my decision issued that same day awarded the stipulated amount ($135,000) to Petitioner. ECF
No. 31.

        Petitioner subsequently requested an award of fees and costs reflecting work performed by
her counsel, the law firm of Conway, Homer & Chin-Caplan, P.C. (the “Homer Firm”) in addition
to costs incurred by the Homer Firm and by her in her individual capacity in the amount of
$32,270.11. Pet’r’s App. for Attorney’s Fees and Costs, dated Oct. 16, 2015 (ECF No. 36).
Respondent filed a response on November 25, 2015 (ECF No. 38) stating that she stands by the
arguments regarding the appropriate sums to be awarded to Homer Firm attorneys as set forth in
the similarly-situated case, Dolloff v. Sec’y of Health & Human Servs., No. 13-731V, but deferring
resolution of the present application to my discretion.

        Ms. Shea requests $28,492.00 in attorney’s fees, plus $3,428.11 in costs incurred by
Petitioner’s counsel, and an additional $350.00 for costs incurred by Petitioner directly.
Respondent’s primary objection (consistent with arguments made in concurrent matters involving
the Homer Firm) concerns the hourly rates claimed by the Homer Firm. The Federal Circuit has
endorsed the use of the lodestar approach when determining what constitutes reasonable attorney’s
fees under the Vaccine Act. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48
(Fed. Cir. 2008). Utilizing this approach, a special master first designates a reasonable hourly rate
for the attorney in question, and then multiplies it by the number of hours that the attorney
reasonably expended on the litigation. Avera, 515 F.3d at 1347-48.3

        Petitioner requests attorney rates that are consistent with those established in McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), reconsid. den’d, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). Respondent has
maintained her prior objections to the McCulloch rates, but has also indicated that she will not
devote further resources to challenging the wisdom of those rates. See ECF No. 38 at 1. As I have
noted in other recent decisions involving the Homer Firm, I am persuaded by McCulloch, and will
therefore apply those rates herein. See, e.g., Dolloff v. Sec’y of Health & Human Servs., No. 13-
731, ECF No. 42 (Fed. Cl. Spec. Mstr. Nov. 23, 2015).



3
  After making this initial calculation, a special master may make an “upward or downward departure to the fee award
based on other specific findings.” Id. at 1348. However, there is a presumption that following this procedure results
in a reasonable fees award, which may “only be overcome in those rare circumstances in which the lodestar does not
adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010) (internal quotations omitted). In requesting attorney’s fees, the
petitioner in a Vaccine Program case bears the burden of providing evidence to support the reasonableness of the
attorney’s hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Sabella v. Sec'y of Health & Human Servs.,
86 Fed. Cl. 201, 211 (2009); Rupert v. Sec'y of Health & Human Servs., 52 Fed. Cl. 684, 686 (2002).

                                                         2
        The second part of the lodestar calculation is the reasonableness of the attorney time
devoted to this matter.4 Respondent has failed to identify any specific examples of unreasonable
billing. Rather, she simply attempts to incorporate the arguments asserted in Dolloff, such as
challenges to the numbers of hours billed. See ECF No. 38 at 1. However, special masters are not
obligated to evaluate an attorney’s billing records on a line-by-line basis in making the
reasonableness determination (Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22
(Fed. Cir. 1993)), and certainly need not do so when Respondent has not attempted to highlight
any specific alleged inefficiencies. The hours billed by Petitioner’s counsel in this case appear
reasonable, and I therefore see no independent reason to reduce them.

        Accordingly, I hereby grant Petitioner’s Application for Attorney’s Fees and Costs in its
entirety. An award should be made in the form of a check in the amount of $31,920.11 representing
attorney’s fees and costs5, payable jointly to Petitioner and Petitioner’s counsel, Conway, Homer
& Chin-Caplan, PC. In addition, an award should be made in the form of a check in the amount of
$350.00 representing costs incurred directly by the Petitioner, payable solely to Petitioner. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is
directed to enter judgment herewith.6

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




4
  A Vaccine Act petitioner should be compensated only for hours “reasonably expended” on the litigation. Carrington
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 319, 323 (2008) (quoting Hines v. Sec'y of Health & Human Servs.,
22 Cl. Ct. 750, 754 (Apr. 2, 1991)). It is within the special master’s discretion to reduce the number of hours by a
percentage of the amount charged, rather than making a line-by-line determination regarding the reasonableness of
the charges. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 728–29 (2011) (affirming the special
master's reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406
(1997) (affirming the special master's reduction in the number of hours from 515.3 hours to 240 hours); Edgar v. Sec’y
of Health & Human Servs., 32 Fed. Cl. 506 (1994) (affirming the special master's awarding only 58 percent of the
numbers of hours for which compensation was sought).
5
  Respondent did not in this case lodge any objection to costs incurred, and I have not independently identified any
basis for reducing or limiting them. Therefore, the entirety of costs incurred by Petitioner and Petitioner’s counsel are
also awarded.

6
  Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or
separately) a notice renouncing their right to seek review.

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