         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 18-0137V
                                   Filed: September 20, 2019
                                         UNPUBLISHED


    RICARDO HERNANDEZ,

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

                       Respondent.


David Alexander Tierney, Rawls Law Group, Richmond, VA, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

        On January 29, 2018, Ricardo Hernandez (“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 a flu vaccine
administered on September 27, 2016, caused-in-fact “debilitating pain, restricted range
of motion, and adhesive capsulitis of his left shoulder and arm[.]” Petition at preamble.
On June 17, 2019, the undersigned issued a decision awarding compensation to
petitioner based on the respondent’s proffer. ECF No. 32.


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 Because this unpublished decision contains a reasoned explanation for the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).
        On August 1, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 36. Petitioner requests attorneys’ fees in the amount of $16,273.90 and attorneys’
costs in the amount of $933.58. Id. at 4. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. ECF No. 36-3. Thus, the total amount requested is $17,207.48

       On August 15, 2019, respondent filed a response to petitioner’s motion. ECF No.
37. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 requires
respondent to file a response to 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 requests that the Court exercise its discretion and determine a
reasonable award for attorneys’ fees and costs.” Id. at 3.

      Petitioner filed no reply.

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

      I.      Legal Standard

         The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). 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
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
engage 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).

        The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request 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.
                                            2
           II.     Attorney Fees

                   A. Hourly Rates

                       i.      David Tierney

       Petitioner requests compensation for attorney David Tierney at the rate of $238
per hour time for billed in 2018 and $254 per hour for time billed in 2019. ECF No. 36 at
3. While the requested rate for 2018 is within the appropriate experience range on the
Court’s Attorneys’ Hourly Rate Fee Schedule, the rate is at the high end of the spectrum
given his limited experience in the Vaccine Program and his overall legal experience.3
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 at *17
(stating the following factors are paramount in deciding a reasonable forum hourly rate:
experience in the Vaccine Program, overall legal experience, the quality of work
performed, and the reputation in the legal community and community at large).4
Regarding the requested 2019 rate, it exceeds the experience range for Mr. Tierney.
Mr. Tierney’s affidavit states he became a licensed attorney in 2016, placing him in the
range of attorney’s with less than four years’ experience. ECF No. 36-4 at 1. Due to
Mr. Tierney’s limited legal experience and inexperience in the Vaccine Program, the
undersigned finds cause to reduce the requested hourly rate commensurate with his
experience as a licensed attorney. As such, Tierney’s rates are reduced to $200 for
work performed in 2018 and $215 for work performed in 2019. This results in a
reduction of attorney’s fees requested in the amount of $345.70.5

                       ii.     Glen Sturtevant

       Petitioner requests the rate of $326 per hour for 2018 and the rate of $349 for
2019 for work performed by attorney Glen Sturtevant. Mr. Sturtevant was previously
awarded the rate of $326 for 2018 and it is awarded herein. Although Mr. Sturtevant’s
requested 2019 rate of $349 per hour is within his appropriate experience rate, he was
previously awarded the rate of $339 for 2019. Kovtun v. Sec’y of Health & Human
Servs., No. 18-0296V, slip op. at 34 (Fed. Cl. Spec. Mstr. May 30, 2019). The
undersigned reduces the requested rate for 2019 to the previously awarded rate,
reducing the request for attorneys’ fees in the amount of $8.00.6

                       iii.    Paralegal Rates


3
    This is Mr. Tierney’s first case in the Vaccine Program.
4
 OSM Attorneys’ Forum Hourly Rate Schedules for 2019 and are available at
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule%
202019.pdf

5This amount consists of ($238 - $200 = $38 x 1.4 hrs = $53.20) + ($254 - $225 = $39 x 7.5 hrs =
$292.50) = $345.70.

                                                        3
        The paralegals of Rawls Law Group billed at the hourly rate of $145 for time
billed in 2017, $152 per hour for 2018. These rates have been previously awarded to
the paralegals and are awarded herein. The requested rate of $159 per hour for 2019
exceeds the range for paralegals for 2019. The undersigned reduces the paralegal
rates for 2019 to $156 per hour, reducing the request for attorneys’ fees in the amount
of $21.00.7

          III.    Attorney Costs

        Petitioner requests reimbursement for attorney costs in the amount of $933.58.
After reviewing petitioner’s invoices, the undersigned finds no cause to reduce
petitioner’s’ request and awards the full amount of attorney costs sought.

          IV.     Conclusion

     Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.

      Accordingly, the undersigned awards the total of $16,832.788 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
David Alexander Tierney.

          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




6   This amount consists of $349 - $339 = $10 x 0.8 hrs = $8.00.

7   This amount consists of $159 - $156 = $3 x 7 hrs = $21.00.

8This 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).

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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