        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-1264V
                                      Filed: May 10, 2017
                                        UNPUBLISHED
*********************************
LINDA K. SCHUPP,                                  *
                                                  *
                         Petitioner,              *
                v.                                *
                                                  *       Attorney’s Fees and Costs;
SECRETARY OF HEALTH                               *       Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                               *
                                                  *
                         Respondent.              *
                                                  *
****************************
Brian L. Cinelli, Marcus & Cinelli, LLP, Williamsville, NY, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEY’S FEES AND COSTS1

Dorsey, Chief Special Master:

        On October 27, 2015, Linda K. Schupp (“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 alleged that she suffered pain in her
left shoulder as a result of an influenza (“flu”) vaccine she received on September 17,
2013. On May 20, 2016, the undersigned issued a decision awarding compensation to
petitioner based on respondent’s proffer. (ECF No. 25).




1
  Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
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).
   I.     Procedural History

       On November 16, 2016, petitioner filed a motion for attorney’s fees and costs.
(ECF No. 30). Petitioner requests attorney’s fees in the amount of $32,285.00, and
attorney’s costs in the amount of $640.10, for a total amount of $32,925.10. Id. at 2. In
accordance with General Order #9, petitioner’s counsel represents that petitioner
incurred $101.07 in out-of-pocket expenses.

        On December 5, 2016, respondent filed a response to petitioner’s motion. (ECF
No. 31). 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 attorney’s fees and costs.” Id. at 1. Respondent adds, however, that she “is
satisfied the statutory requirements for an award of attorney’s fees and costs are met in
this case.” Id. at 2. Respondent recommends that the undersigned exercise her
discretion and determine a reasonable award for attorney’s fees and costs. Petitioner
did not file a reply brief.

   II.    Discussion

       Under the Vaccine Act, the special master shall award reasonable attorney’s fees
and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-
15(e)(1). Petitioner in this case was awarded compensation; she is therefore entitled to
an award of reasonable attorney’s fees and costs.

          a. Reasonable Attorney’s Fees

        The Federal Circuit has approved use of the lodestar approach to determine
reasonable attorney’s 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 attorney’s 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 of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 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 [her] experience and judgment, [is]
reasonable for the work done.” Id. at 1522. Furthermore, the special master may
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reduce a fee request 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, 209 (2009). A special master need not
engaged 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 (2011).

                  i. Hourly Rates

       The undersigned has reviewed the billing records submitted with petitioner’s
request. Petitioner requests compensation for her attorney, Mr. Cinelli, at a rate of $275
per hour for time billed from 2014-2016 and an hourly rate of $110 for her paralegal, Ms.
Couturier. Mr. Cinelli graduated from Georgetown University Law Center in 2001 and is
one of the founding partners of Marcus & Cinelli, LLP located in Williamsville, New York.
See Affidavit to Petitioner’s Motion for Attorney’s Fees and Costs at 1-2. (ECF No. 30,
Doc. No. 1). The undersigned finds these rates to be reasonable and will award it
herein.

                 ii. Reduction of Billable Hours

         Special masters have the authority to award “reasonable” attorney’s fees and
litigation costs in Vaccine Act cases. §300aa–15(e)(1). This is true even when a
petitioner is unsuccessful on the merits of the case, if the petition was filed in good faith
and with a reasonable basis. Id. “The determination of the amount of reasonable
attorney’s fees is within the special master's discretion.” Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); see also Shaw v. Sec’y of Health &
Human Servs., 609 F.3d 1372, 1377 (Fed. Cir. 2010).

        Further, as to all aspects of a claim for attorney’s fees and costs, the burden is
on the petitioner to demonstrate that the attorney's fees claimed are “reasonable.”
Sabella v. HHS, 86 Fed. Cl. 201, 215 (2009); Hensley v. Eckerhart, 461 U.S. 424, 437
(1983); Rupert v. HHS, 52 Fed. Cl. 684, 686 (2002); Wilcox v. Sec’y of Health & Human
Servs., No. 90–991V, 1997 WL 101572, at *4 (Fed. Cl. Spec. Mstr. Feb. 14, 1997). The
petitioner's burden of proof to demonstrate “reasonableness” applies equally to costs as
well as attorney’s fees. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34
(1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994).

        One test of the “reasonableness” of a fee or cost item is whether a hypothetical
petitioner, who had to use his own resources to pay his attorney for Vaccine Act
representation, would be willing to pay for such expenditure. Riggins v. Sec’y of Health
& Human Servs., No. 99–382V, 2009 WL 3319818, at *3 (Fed. Cl. Spec. Mstr. June 15,
2009), aff'd by unpublished order (Fed. Cl. Dec. 10, 2009), aff’d, 406 Fed. App’x. 479
(Fed. Cir. 2011); Sabella v. Sec’y of Health & Human Servs., No. 02–1627V, 2008 WL
4426040, at *28 (Fed. Cl. Spec. Mstr. Aug. 29, 2008), aff'd in part and rev'd in part, 86

                                              3
Fed. Cl. 201 (2009). In this regard, the United States Court of Appeals for the Federal
Circuit has noted that:

       [i]n the private sector, ‘billing judgment’ is an important component in fee setting.
       It is no less important here. Hours that are not properly billed to one's client also
       are not properly billed to one's adversary pursuant to statutory authority.

Saxton, 3 F.3d at 1521 (emphasis in original) (quoting Hensley, 461 U.S. at 433–34).
Therefore in assessing the number of hours reasonably expended by an attorney, the
court must exclude those “hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.” Hensley, 461 U.S. at 434; see also Riggins, 2009 WL
3319818, at *4.

        The Federal Circuit has also made clear that special masters may rely on their
prior experience in making reasonable fee determinations, without conducting a line-by-
line analysis of the fee bill, and are not required to rely on specific objections raised by
respondent. See Saxton, 3 F.3d at 1521; Sabella, 86 Fed. Cl. 201, 209 (2009); see also
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484, 486 (1991), aff’d, 988
F.2d 131 (Fed. Cir. 1993) (holding that, in determining a reasonable number of hours
expended in any given case, a special master may rely on her experience with the
Vaccine Act and its attorneys, without basing her decision on a line-by-line examination
of the fee application). A unanimous Supreme Court has articulated a similar holding:

       We emphasize, as we have before, that the determination of fees “should not result
       in a second major litigation.” The fee applicant (whether a plaintiff or a defendant)
       must, of course, submit appropriate documentation to meet “the burden of
       establishing entitlement to an award.” But trial courts need not, and indeed should
       not, become green-eyeshade accountants. The essential goal in shifting fees (to
       either party) is to do rough justice, not to achieve auditing perfection. So trial courts
       may take into account their overall sense of a suit, and may use estimates in
       calculating and allocating an attorney’s time. And appellate courts must give
       substantial deference to these determinations, in light of “the district court’s superior
       understanding of the litigation.” We can hardly think of a sphere of judicial
       decisionmaking in which appellate micromanagement has less to recommend it.
       Fox v. Vice, 563 U.S. 826, 838 (2011) (internal citations omitted).

        The undersigned finds that petitioner’s award should be reduced for excessive
billing. The Vaccine Act provides broad discretion to special masters in determining a
reasonable amount of fees and costs. See § 15(e)(1). While petitioner is entitled to an
award of attorney’s fees, the undersigned finds that the total number of hours billed by
both Mr. Cinelli and his paralegal, Ms. Couturier, to be excessive. For example, upon
review of all the records in this case, a total of 184 pages of petitioner’s medical records
were filed. Petitioner also filed 10 articles discussing shoulder injuries. Ms. Couturier
billed more than 37 hours ($4,000) for the retrieval and review of the 184 pages medical
                                               4
records in this case. Mr. Cinelli billed more than 43 hours ($11,825) to review the 184
pages of records and prepare the petition in this case. These hours do not include the
hours billed to draft the affidavits, conduct legal research, interoffice meetings or
conferences with the client. In the undersigned’s experience adjudicating similar types
of SIRVA (shoulder injury related to vaccine administration) claims and reviewing the
associated billing records of such SIRVA claims, the hours billed in this case are
significantly higher. Therefore, a reduction in the number of hours billed by Mr. Cinelli
and his paralegal, Ms. Couturier, is appropriate. The undersigned will reduce the
excessive attorney and paralegal hours billed by 20 percent, a reduction of $3,165.00.3

      The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorney’s fees and costs.

        Accordingly, the undersigned awards the total of $29,861.17,4 as follows:

                A lump sum of $29,760.10, representing reimbursement for
                 attorney’s fees and costs, in the form of a check payable jointly to
                 petitioner and petitioner’s counsel, Marcus & Cinelli, LLP; and

                A lump sum of $101.07, 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.5

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




3
  The undersigned finds that 43 of Mr. Cinelli’s hours (or $11,825) were excessive and this amount is
reduced by 20 percent (a reduction of $2,365). The undersigned finds that 37 of Ms. Ms. Couturier’s
hours (or $4,000) were excessive and this amount is reduced by 20 percent (a reduction of $800).
4
 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).
5
  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.
                                                    5
