         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0111V
                                      Filed: April 10, 2019
                                         UNPUBLISHED


    GANESH UPADHIAI,

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

                       Respondent.


Robert Connolly, Connolly Law Firm, P.C., Mineola, N.Y., for petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

       On January 27, 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 alleges that he suffered Guillain-Barre Syndrome (“GBS”) as
a result of his January 14, 2013 influenza (“flu”) vaccination. Petition at 1. On June 25,
2018, the undersigned issued a decision awarding compensation to petitioner based on
the parties’ stipulation. ECF No. 55.

     On February 21, 2019, petitioner filed a motion for attorneys’ fees and costs.
ECF No. 62. Petitioner requests attorneys’ fees in the amount of $48,222.25 and

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 Because this unpublished decision contains a reasoned explanation for the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).
attorneys’ costs in the amount of $15,379.95. Id. at 1-2. In compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-
pocket expenses. Id. at 2. Thus, the total amount requested is $63,602.20.

        On February 25, 2019, respondent filed a response to petitioner’s motion. ECF
No. 63. 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 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.

       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.   Robert Connolly, Esq.

         Petitioner requests compensation for attorney Robert Connolly at the following
rates:

                       $400 per hour for work performed in 2015 and 2016;
                       $410 per hour for work performed in 2017; and
                       $425 per hour for work performed in 2018.

        The undersigned finds the requested rates excessive based on Mr. Connolly’s
overall legal experience, the quality of work performed, and his lack of experience in the
Vaccine Program. See McCulloch v. Health & Human Servs., No. 09–293V, 2015 WL
5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (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). These rates are derived from the OSM
Attorneys’ Forum Hourly Rate Schedules for years 2015 - 2018 available on the U.S.
Court of Federal Claims website at www.cofc.uscourts.gov/node/2914. The
undersigned incorporates by reference all of the explanatory notes contained in these
rate schedules. See also McCulloch, 2015 WL 5634323, at *19.

        Mr. Connolly has been practicing law since 1994, which places him in the range
of attorneys with 20 -30 years of experience for all work performed in this case. ECF
No. 62-1 at 6. Given Mr. Connolly’s inexperience in the Vaccine Program, a reduction
of his requested rates is deemed appropriate. See McCulloch. Mr. Connolly states his
rates are based on his years of practice and his location in the “New York metropolitan
area”. ECF No. 62 -1 at 6. Mr. Connolly is located in the town of Mineola, NY 3 and his
experience has consisted largely of “employment related” cases. Id at 6. This is Mr.
Connolly’s first case in the Vaccine Program. Id. at 6. Although the requested rates fall
within the correct experience ranges, they are on the high end of the ranges. Mr.
Connolly lacks the experience in the Vaccine Program to support the requested rates.
Based on the undersigned’s experience and application of the factors discussed in
McCulloch, Mr. Connolly’s requested hourly rates are reduced to the following:

               $350 per hour for work performed in 2015 and 2016,
               $365 per hour for work performed in 2017,
               $380 per hour for work performed in 2018, and
               $395 per hour for work performed in 2019.

3It has not been determined if Mineola, NY would be awarded Forum or Local rates. The undersigned will
not make that determination within this decision.
                                                  3
        Therefore, the overall request for attorneys’ fees is reduced by $5,515.00. 4

                B. Excessive, and Block Billing

        In addition to reducing the requested hourly rates, the undersigned also finds that
petitioner’s award should be reduced for excessive and block billing entries. Of the total
118.75 hours billed more than 40 are entries listed with Mr. Connolly directing his
assistant to perform a task. For example, on April 4, 2017, Mr. Connolly’s entry states
“Intra-office communications with assistant regarding obtaining and producing
information requested by Respondent; email and telephone communications with
Petitioner regarding same; review email correspondence between assistant and
Petitioner regarding same”. ECF No. 62-2 at 17. Being as these entries are blocked
with other tasks it is difficult for the undersigned to determine the amount of time spent
preforming each task. Block billing or billing large amounts of time without sufficient
detail as to what tasks were performed, is clearly disfavored. See Broekelschen v.
Sec’y of Health & Human Servs., 07-137V, 2008 WL 3903710 (Fed. Cl. Spec. Mstr. Dec
15, 2006). The Vaccine Program’s Guidelines for Practice state, “Each task should
have its own line entry indicating the amount of time spent on that task.” 5 Several tasks
lumped together with one time entry frustrates the court’s ability to assess the
reasonableness of the request.

       The undersigned reduces the overall request for attorney’s fees by 5 percent for
excessive and block billing. This results in a reduction of requested fees in the amount
of $2,135.36. 6

        III.    Attorney Costs

      Petitioner requests compensation for attorneys’ costs in the amount of
$15,379.95. These costs include medical records, filing fees, and expert costs. ECF
No. 62-3 at 1-39. After reviewing the invoices submitted the undersigned finds the
requested amount reasonable and awards it in full.




4This amount consists of ($400 - $350 = $50 x 52.4 hrs = $2,620) + ($410 - $365 = $45 x 49.1 hrs =
$2,209.50) + ($425 - $380 = $45 x 11.2 hrs = $504) + ($425 - $395 = $30 x 6.05 hrs = $181.50) =
$5,515.00.

5 The Guidelines for Practice can be found at

http://www.cofc.uscourts.gov/sites/default/files/19.01.18%20Vaccine%20Guidelines.pdf

6 This amount consists of a 5 percent reduction of reduced total of attorney fees after the adjustment of
the hourly rates.

                                                     4
        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 $55,951.84 7 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Robert Connolly.

        The clerk of the court shall enter judgment in accordance herewith. 8

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




7This 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).
8 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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