         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1200V
                                   Filed: September 21, 2017
                                         UNPUBLISHED


    AMY PAINTER,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Attorneys’ Fees and Costs
    v.

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Jerome A. Konkel, Samster, Konkel & Safran, S.C., Milwaukee, WI, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

       On September 26, 2016, 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 a shoulder injury caused-in-fact by
her January 9, 2013 influenza vaccination. On March 23, 2017, the undersigned issued
a decision awarding compensation to petitioner based on respondent’s proffer. (ECF
No. 18.)

       On August 22, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 22.) Petitioner requests attorneys’ fees in the amount of $13,187.84 and attorneys’
costs in the amount of $2,122.39. (Id. at 1.) In compliance with General Order #9,

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

2National 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).
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Thus, the total amount requested is $15,310.23.

        On August 28, 2017, respondent filed a response to petitioner’s motion. (ECF
No. 23.) 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. Petitioner’s counsel seeks hourly rates of $350 per hour for work performed in
2015-2016 and $358 for work performed in 2017. (ECF No. 22-1.) However, petitioner’s
counsel has previously billed and been awarded fees at a rate of $312 per hour for 2015
and 2016. E.g. Opperman v. HHS, No. 14-1222, 2017 WL 2883891 (Fed. Cl. Spec.
Mstr. Jan. 31, 2017). The undersigned concludes that $358 per hour is a reasonable
rate for work performed in 2017, but reduces the rate for 2015 and 2016 to $312 per
hour, consistent with counsel’s prior contemporaneous cases. See, e.g. Simmons v.
HHS, No. 11-216V, 2016 WL 6156330 (Fed. Cl. Spec. Mstr. Sept. 28, 2016)(finding that
petitioner’s counsel could not apply an attorney rate increase retroactively for work
previously performed). This results in a reduction of $813.96. 3

        Additionally, the undersigned reduces petitioner’s requested costs by $665.50.
This reflects the $400.00 Court of Federal Claims filing fee for petitioner’s prior vaccine
petition, which was dismissed due to a pending civil action, as well as the $265.50 filing
fee for that civil action in Racine County Court. The undersigned does not find that
these filing fees were reasonably incurred in proceeding on the petition. Stewart v. HHS,
No. 06-287V, 2011 WL 5330388, at *22-25 (Fed. Cl. Spec. Mstr. Oct. 17, 2011 (citing
§15(e)(1)(b) and determining that “costs associated with previous, civil litigation
unrelated to [the proceedings under the Vaccine Act] are not compensable”); Yang v.
HHS, No. 10-33V, 2013 WL 4875120, at *5 (Fed. Cl. Spec. Mstr. Aug. 22, 2013)
(holding that “petitioner’s counsel’s requests for attorneys’ fees for work that was
created by counsel’s mistakes are unreasonable.”); Perreira v. HHS, 27 Fed. Cl. 29, 34
(1992) (noting that “[n]ot only must any request for reimbursement of attorneys’ fees be
reasonable, so also must any request for reimbursement of costs.”)

      In the undersigned’s experience, the request otherwise appears reasonable, and
the undersigned finds no further cause to reduce the requested hours or rates.


3Petitioner’s motion did not provide billing totals by year. The undersigned tabulated 21.42 hours billed
by counsel at a rate of $350 per hour.

                                                     2
      The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorneys’ fees and costs.

      Accordingly, the undersigned awards the total of $13,830.77 4 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Jerome A. Konkel, Esq.

        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




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.
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