          In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 18-0495V
                                      Filed: August 16, 2019
                                          UNPUBLISHED


    BETH RAITER,

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

                         Respondent.


Howard Dale Mishkind, Mishkind Law Firm Co., L.P.A., Beechwood, OH , for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

       On April 4, 2018, 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 she suffered the Table injury of shoulder injury related to
vaccine administration (“SIRVA”) after receiving an influenza vaccination on September
10, 2015. Petition at ¶¶ 2-3. On May 31, 2019, the undersigned issued a decision
awarding compensation to petitioner based on the respondent’s proffer. ECF No. 26.

       On July 18, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No.
31. Petitioner requests attorneys’ fees in the amount of $8,648.75 and attorneys’ costs
in the amount of $912.75. Id. at 7. In compliance with General Order #9, petitioner filed


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 Because this unpublished decision contains a reasoned explanation for the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.
a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at
33. Thus, the total amount requested is $9,561.50.

       On July 25, 2019, respondent filed a response to petitioner’s motion. ECF No.
32. 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 did not file a 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
reason 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.




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          II.     Attorney Fees

                  A. Hourly Rates

      Petitioner requests the rate of $400 per hour for work performed by attorney
Howard Dale Mishkind and $125 for his paralegal. Mr. Mishkind was previously
awarded the rates of $385 for 2016 and $394 for 2017. See Spearman v. Sec’y of
Health & Human Servs., No. 16-1119V, 2018 WL 3991276, (Fed. Cl. Spcl. Mstr. April
10, 2018); Walker v. Sec’y of Health & Human Servs., No. 17-0689V, 2018 WL
5262623, (Fed. Cl. Spcl. Mstr. August 21, 2018). The undersigned reduces Mr.
Mishkind’s rate for 2016 and 2017 to the previously awarded rates of $385 and $394,
respectively. This results in a reduction of the request for attorney fees in the amount of
$66.75.3 For 2018 and 2019, the undersigned finds the requested rate of $400
reasonable and awards it here in. The rate of $125 per hour for work performed by the
paralegal is reasonable and awarded herein.

          III.    Attorney Costs

        Petitioner requests reimbursement for attorney costs in the amount of $912.75.
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
petitioner’s motion for attorneys’ fees and costs.

       Accordingly, the undersigned awards the total of $9,494.754 as a lump sum
in the form of a check jointly payable to petitioner and petitioner’s counsel
Howard Dale Mishkind.

          The clerk of the court shall enter judgment in accordance herewith. 5




3
    This amount consists of $250 - $233 = $17 x 21.1 = $358.70.

4This 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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IT IS SO ORDERED.

                        s/Nora Beth Dorsey
                        Nora Beth Dorsey
                        Chief Special Master




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