         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1116V
                                     Filed: March 18, 2019
                                         UNPUBLISHED


    BEVERLY TOWNE,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU);
                                                             Attorney’s Fees and Costs
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Verne E. Paradie, Jr., Paradie, Sherman, et al., Lewiston, ME, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEY’S FEES AND COSTS 1

Dorsey, Chief Special Master:

      On September 8, 2016, Dr. Beverly Towne (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleges that she suffered left
shoulder injuries caused by a Tetanus Diphtheria acellular Pertussis (“Tdap”) vaccine
she received on December 23, 2015. Petition at 1-2. On November 19, 2018, the
undersigned issued a decision based on the parties’ stipulation. ECF No. 39.

      On January 17, 2019, petitioner filed a motion for attorney’s fees and costs. ECF
No. 44. Petitioner requests attorney’s fees in the amount of $14,185.00 and attorney’s

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the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
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
costs in the amount of $1,792.88. ECF No. at 44-1 at 5. Additionally, in accordance
with General Order #9, petitioner's counsel represented that petitioner incurred $288.60
in out-of-pocket expenses. ECF No. 44 at 1. Thus, the total amount requested is
$16,266.48.

        On March 5, 2019, respondent filed a response to petitioner’s motion. ECF No.
45. 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.

      Petitioner has filed no reply.

      The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.

             Reasonable Attorney Fees

       The Federal Circuit endorses the lodestar approach to determine reasonable
attorneys’ fees and costs. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,
1349 (Fed. Cir. 2008). Under the lodestar approach, a court makes “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 1347-48 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). After this initial calculation, the court “may then
make an upward or downward departure to the fee award based on other specific
findings.” Id. at 1348.

        The reasonableness standard applies both to attorneys’ fees and costs. Savin v.
Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 315 (2008). The application must
provide sufficient detail and explanation of the time billed so that a special master may
adjudge the reasonableness of the amount requested. Bell v. Sec’y of Health & Human
Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez v. Sec’y of Health & Human Servs., No.
06-559V, 2009 WL 2568468, at *8 (Fed. Cl. Spec. Mstr. July 27, 2009). It is the
petitioner who bears the burden of adequately documenting the fees and costs.
Rodriguez, 2009 WL 2568468, at *8.

       Special masters need not conduct a line-by-line evaluation of a petitioner’s fee
application to determine a reasonable number of hours expended. Wasson v. Sec’y of
Health & Human Sevs., 24 Cl.Ct. 482, 484, aff’d in relevant part, 988 F.2d 131 (Fed. Cir.
1993); Nelson v. Sec’y of Health & Human Servs., No. 14-70V, 2015 WL 9302973 at *2
(Fed. Cl. Spec. Mstr. Nov. 30, 2015) (“It is within the special master’s discretion to

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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”). Special
masters have discretion to discern whether any of the requested hours are “excessive,
redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (internal quotations and citations omitted). In
contemplating reductions, special masters have the latitude to “consider their prior
experience in reviewing fee applications and even dealings with the specific attorney
involved.” Savin, 85 Fed. Cl. at 315. It is further within the purview of special masters
to reduce a fee request sua sponte, apart from or in the absence of respondent’s
objections, and without providing petitioner notice or opportunity to respond. Sabella v.
Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009); Estate of Bondi by
Shoemaker v. Sec’y of Health & Human Servs., No. 12-476V, 2017 WL 1046526 at *2
(Fed. Cl. Spec. Mstr. Feb. 23, 2017).

                  Hourly Rates

                          Verne E. Paradie, Jr.

       Petitioner requests compensation for attorney Verne E. Paradie, Jr. at the rate of
$350 per hour 3 for work performed from 2016 – 2018. ECF No. 44-1. In prior cases in
the Vaccine Program, Mr. Paradie billed at the hourly rate of $300 for work performed in
2016 and 2017. See Mondello v. Sec’y of Health & Human Servs., No. 15-0972V, 2018
WL 1834189, (Fed. Cl. Spec. Mstr. Mar. 20, 2018) and Caron v. Sec’y of Health &
Human Servs., No. 15-0777V, 2018 WL 2772496, (Fed. Cl. Spec. Mstr. May 7, 2018).
Mr. Paradie has failed to provide an affidavit supporting the reasons for an increase in
his hourly rate from $300 to $350 per hour. See Guidelines for Practice Under the
National Vaccine Injury Compensation Program, Section X: Attorneys’ Fees and Costs,
Chapter 3 (B)(1)(a)-(c). Because there is an inadequate basis for the increased rate,
the undersigned reduces Mr. Paradie’s rate to that of $300 per hour as previously
awarded. Therefore, the request for attorney’s fees is reduced by $1,935.00. 4

                  Travel Time

       In the Vaccine Program, special masters traditionally have compensated time
spent traveling when no other work was being performed at one-half an attorney’s
hourly rate. See Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL
3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health &
Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27,
2009); English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at
*12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use

3Mr. Paradie’s hourly rate was not listed in the billing records or in a supporting affidavit. His rate was
calculated from the billing invoices submitted.
4   This amount consists of $350 - $300 = $50 x 38.7 hrs = $1,935.00.

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this rule as standard practice but rather “[e]ach case should be assessed on its own
merits.” Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). “Even
an automatic 50% award may be too high for an undocumented claim, given the
possibility that an attorney may use the travel time to work on another matter or not to
work at all while traveling.” Id. Mr. Paradie billed 3.7 hours for travel from Portland,
Maine to Washington D.C. to attend the April 2018 hearing. ECF No. 44-1 at 3. For the
reasons stated above, the hours billed as travel will be reduced by 50 percent. This
reduces the request for attorney’s fees in the amount of $405.00. 5

                  Administrative Time

       Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the
attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of
Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy v. Sec’y of Health & Human Servs., No. 02-010V, 2016
WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016) (citing Rochester, 18 Cl. Ct. at
387). A total of 4.7 hours was billed on tasks considered administrative including,
opening files, faxing documents, scanning, and sending documents. Examples of these
entries include 6:

              •   July 21 (0.30 hrs) “Open File”
              •   September 13, 2016 (0.10 hrs) “Fax: Request Medical Records from
                  Freeport Medical Center”
              •   September 13, 2016 (0.10 hrs) “Fax: Request Medical Records from
                  Greater Brunswick Physical Therapy”
              •   September 29, 2016 (0.50 hrs) “Redact Medical Records, Scan as
                  Exhibits, Bates Stamp Exhibits and start Table of Contents”
              •   October 25, 2016 (0.40 hrs) “Redact Medical Records, Scan as Exhibits,
                  Bates Stamp Exhibits and start Table of Contents”

ECF No. 44-1 at 1-2.

      The undersigned reduces the request for attorney fees by $470.00 7, the total
amount of the tasks considered administrative.

                  Costs


5   This amount consists of the already reduced rate of $300 x 2.7 hrs = $810.00 / 2 = $405.00.

6   These are merely examples and not an exhaustive list.
7   This amount consists of 4.7 hrs x $100.00 = $470.00.
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         Petitioner requests reimbursement for costs incurred by Mr. Paradie in the
amount of $1,792.88. ECF No. 44-1 at 5. After reviewing the billing invoices, the
undersigned finds no cause to reduce petitioner’s’ request and awards the full amount
of attorney costs sought.

      The amount of $288.60 personally incurred by the petitioner is found to be
reasonable and will be paid in full.

                Conclusion

       The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§ 15(e). Petitioner’s motion for attorney’s fees and costs is GRANTED IN PART as
follows:

        Attorney’s Fees:
        Total Requested:                                                   $14,185.00
        Less Rate Adjustment for Verne E. Paradie, Jr.:                    ($1,935.00)
        Less Travel Time:                                                  ($ 405.00)
        Less Administrative Time:                                           ($ 470.00)
        Total Attorney’s Fees:                                             $11,375.00
        Attorney’s Costs:
        Total Requested:                                                   $ 1,792.88
        Total Attorney’s Costs:                                            $ 1,792.88


        Petitioner’s Costs Awarded:                                        $    288.60


        Total Fees and Costs Awarded:                                      $ 13,456.48

        Accordingly, the undersigned awards the total of $13,456.48 8 as follows:




8 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” as well as fees for legal services rendered.
Furthermore, § 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).

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             •   A lump sum of $13,167.88 , representing reimbursement for
                 attorney’s fees and costs, in the form of a check payable jointly to
                 petitioner and petitioner’s counsel, Verne E. Paradie, Jr.; and

             •   A lump sum of $288.60, 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. 9

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




9 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.
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