    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                    Filed: February 18, 2020

* * * * * * * * * * * * * *                                UNPUBLISHED
FREDRIC KERNS,             *
                           *
     Petitioner,           *                               No. 16-1498V
                           *                               Special Master Oler
v.                         *
                           *                               Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Althea W. Davis, United States Department of Justice, Washington, DC, for Respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

        On November 14, 2016, Fredric Kerns (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that he developed Bell’s palsy as a result of receiving an influenza
vaccination on March 16, 2015. See Petition, ECF No. 1. On June 12, 2019, the parties filed a
stipulation, which the undersigned adopted as her Decision awarding compensation on June 17,
2019. Decision, ECF No. 58.

        On October 8, 2019, Petitioner filed an application for final attorneys’ fees and costs. ECF
No. 61 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$22,122.64, representing $21,205.40 in attorneys’ fees and $510.59 in attorneys’ costs. Fees App.
at 1. Pursuant to General Order No. 9, Petitioner states that he has personally incurred $406.65 in

1
  The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the ruling 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
costs related to this litigation. ECF No. 62. Respondent responded to the motion on October 16,
2019, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case” and requesting that the undersigned “exercise her discretion
and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No.
63. Petitioner did not file a reply thereafter.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

        Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation, he is
entitled to a final award of reasonable attorneys’ fees and costs.

        It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.

       a. Reasonable Hourly Rates

         The undersigned has reviewed the rates requested by Petitioner for the work of his counsel
in this case (the billing records indicate that the majority of attorney work was done by Ms. Lauren
Faga, with supplemental work done by Mr. Ronald Homer, Mr. Joseph Pepper, Mr. Patrick Kelly,
and Ms. Christina Ciampolillo). The rates sought herein are consistent with what these individuals
have previously been awarded for their Vaccine Program work, and the undersigned finds them to
be reasonable for this case as well.

       b. Reasonable Hours Expended

         Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.


                                                  2
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

        Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions of the tasks performed, and, upon review, the
undersigned does not find any of the billing entries to be unreasonable. Respondent also did not
indicate that he finds any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $21,205.40.

       c. Attorneys’ Costs

        Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $510.59 in attorneys’ costs. Fees App. at 2. This amount is comprised of acquiring
medical records and postage. All of these costs are typical of Vaccine Program litigation and are
reasonable in the undersigned’s experience. Petitioner has provided adequate documentation
supporting the request. Accordingly, the requested attorneys’ costs are reasonable and shall be
reimbursed in full.

       d. Petitioner’s Costs

       Pursuant to General Order No. 9, Petitioner states that he has personally incurred costs of
$406.65 related to this litigation for the Court’s filing fee and postage. These costs are reasonable
and have been supported with adequate documentation and will therefore be fully reimbursed.

II.    Conclusion

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and his counsel as follows:

 Attorneys’ Fees Requested                                           $21,205.40
 (Reduction to Fees)                                                      -
 Total Attorneys’ Fees Awarded                                       $21,205.40

 Attorneys’ Costs Requested                                            $510.59
 (Reduction to Costs)                                                     -
 Total Attorneys’ Costs Awarded                                        $510.59

 Total Attorneys’ Fees and Costs                                     $21,715.99

 Petitioner’s Costs                                                    $406.65


                                                 3
    Total Amount Awarded                                                  $22,122.64

         Accordingly, the undersigned awards the following:

      1) a lump sum in the amount of $21,715.99, representing reimbursement for reasonable
         attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and
         Petitioner’s counsel of record, Mr. Ronald Homer; and

      2) a lump sum in the amount of $406.65, representing reimbursement for reasonable
         Petitioner’s costs, 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 herewith.3

         IT IS SO ORDERED.


                                                 s/Katherine E. Oler
                                                 Katherine E. Oler
                                                 Special Master




3
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).

                                                    4
