                     In the United States Court of Federal Claims
                                       OFFICE OF SPECIAL MASTERS
                                                 No. 15-867V
                                              (to be published)

*************************
                           *                                     Special Master Corcoran
DAVID MIKKELSON,           *
                           *                                     Filed: October 3, 2016
               Petitioner, *
                           *                                     Attorney’s Fees and Costs;
          v.               *                                     Influenza (“Flu”) Vaccine;
                           *                                     Guillain–Barré Syndrome (“GBS”).
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
               Respondent. *
                           *
*************************

Clifford John Shoemaker, Shoemaker, Gentry, and Knickelbein, Vienna, VA, for Petitioner.

Julia McInerny, U.S. Dep’t of Justice, Washington, DC, for Respondent


                    DECISION AWARDING ATTORNEY’S FEES AND COSTS1

       On August 12, 2015, David Mikkelson filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”),2 based upon allegations that
he developed Guillain–Barré syndrome (“GBS”) as a result of his October 3, 2013, receipt of the
influenza (“flu”) vaccine. The parties stipulated to damages, and I issued a decision awarding them
on July 25, 2016 (ECF No. 26).

       Petitioner filed a Motion requesting an award of attorney’s fees on July 23, 2016. He requests
the fees incurred by Shoemaker, Gentry & Knickelbein (“Shoemaker Firm”) in the amount of
$27,295.90, and costs in the amount of $1,041.12, for a total amount of $28,337.02, plus personally

1
  Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within
which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole decision will be
available to the public. Id.
2
 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of
1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).
incurred costs of $401.20. See Motion for Attorney’s Fees (“Fees Mot.”) filed on July 23, 2016 (ECF
No. 25). Respondent does not oppose the request in substance, but does suggest that the total amount
sought is too high, stating that a reasonable amount for fees and costs in the present case would fall
between $18,000.00 and $22,000.00. See Respondent’s Response to Motion for Attorney’s Fees
(“Response”) at 4-5 (ECF No. 30). For the reasons stated below, and after review of the parties’
submissions and relevant decisions of other special masters, I hereby award the total sum of
$27,917.52 in attorney’s fees and costs to the Shoemaker Firm. I also award David Mikkelson $401.20
in costs.

                                           FACTUAL BACKGROUND

         As noted above, Mr. Mikkelson alleged that he developed GBS after receiving the flu vaccine
in October 2013. The primary attorneys to have worked on the case were Clifford Shoemaker and
Renee Gentry of the Shoemaker Firm3. The billing invoices filed in connection with the present fee
request reveal that Sabrina Knickelbein also performed work throughout the case, which consisted
primarily of email correspondence and reviewing records, but amounting to only 10.2 hours of the
total billed hours. Fees Mot. at 13-17.

         The Shoemaker Firm began work on the case in April 2015 – four months prior to filing their
two-page petition. During that time, Mr. Shoemaker billed 22.4 hours, which seems to have been
primarily consumed by correspondence with Petitioner and reviewing medical records. Once the
petition was filed, the case moved relatively quickly, in part due to the time invested prior to filing
the Petition. Three months after filing, on November 10, 2015, the parties stated in a joint status report
that the record was complete. See Joint Status Report filed on November 10, 2015 (ECF No. 10). It
is difficult to tell what work Mr. Shoemaker performed during this time, because the billing entries
are vague and often only include the notation “review pleading” with no other details. See Fees Mot.
at 9-10. It appears however, that in between the initial filing of the Petition and the joint status report,
the bulk of the work was completed by Ms. Knickelbein, who prepared all the medical records for
CM/ECF and was in charge of email correspondence with Respondent regarding those records. Id. at
13-17.

        After filing the November 2015 Joint Status Report, the parties went directly into settlement
negotiations, which continued until July 19, 2016, when Petitioner signed a Stipulation. See generally
Stipulation (ECF No. 21). Again, the work of the three attorneys shifted during this period, as the
billing records suggest. Ms. Gentry became the point of contact regarding settlement negotiations, so
many of the billing entries reflect her work to draft the settlement demand, and communicate to and
from Respondent and Petitioner. See Fees Mot. at 10-13. Although she became the attorney of record
one day before the stipulation was filed, Ms. Gentry billed for 19.45 hours during settlement

3
    Renee Gentry became the official counsel of record on July 19, 2016.
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negotiations, compared to Mr. Shoemaker’s 5.8 hours. Id. Shortly after the stipulation was entered
with the court, the present motion was filed. Id.

        Petitioner’s Fees Motion seeks different rates for each of the Shoemaker Firm attorneys. Mr.
Shoemaker billed his time at a rate of $415 per hour for 2015, and $430 per hour for 2016. Id. at 6, 9.
Ms. Gentry billed her time at $400 and $415 per hour, respectively for that same period. Id. at 10-11
Finally, Ms. Knickelbein billed her time at $350 and $363 per hour for the given years. Id. at 13, 16.

        Petitioner also requests reimbursement of costs, both expended by him and by the Shoemaker
Firm. The costs in this case remained relatively low, as no experts were hired and the parties reached
a settlement in the early stages of the case. Nonetheless, Petitioner itemized the costs expended on
this case by the Shoemaker Firm, which included the cost of obtaining medical records from several
different sources and making copies, totaling $1,041.12. Id. at 19. Mr. Mikkelson also requests
reimbursement of $401.20 for the filing fee and postage he spent. Id. at 3.

        On August 11, 2016, Respondent filed a document reacting to Petitioner’s Motion. See
generally Response. Respondent asserts 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
attorney’s fees and costs.” Id. at 1. Respondent added that she “is satisfied the statutory requirements
for an award of attorneys’ fees and costs are met in this case.” Id. at 2. However, she maintained that
a reasonable amount for fees and costs in the present case would fall between $18,000.00 and
$22,000.00, providing 11 cases that support the proposed range, all of which were stipulated to by
the parties. Id. at 3-4. Although those cases involved similarly situated petitioners, none of the
stipulated fees involved the Shoemaker firm. Id. Of those 11 cases, one even had fees outside the
Respondent’s proposed range. Id. at 4 (stipulated award of $23,328.91). Petitioner did not file a reply.

                                             ANALYSIS

I.     Petitioner’s Attorney’s Fees Request

       A.      Applicable Rates

       I have previously discussed in detail the applicable standards to resolving a fees request in a
successful Program case. Al-Uffi v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL
6181669, at*5-6 (Fed.Cl. Spec. Mstr. Sept. 30, 2015). The primary issue presented by this case is the
appropriate rates to be paid.

        There have been varying conclusions regarding whether the Shoemaker Firm should receive
the forum rate, given that the office of the firm is located in Vienna, Virginia and thus not literally
“in” the D.C. forum. Several years ago, Special Master Moran determined that “work performed in a
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suburb of Washington, D.C. is not the same, for an analysis of the forum rate ..., as work performed
within the District of Columbia.” See Sabella, 86 Fed. Cl. at 201, 208-9. Combining that conclusion
with the second part the Davis analysis, and comparing the difference between the local rates and the
forum rates, the special master awarded a local rate. Id. Other recent decisions, however, view the
Shoemaker Firm’s Office location as synonymous with Washington, D.C., thus making it unnecessary
to apply the Davis analysis. Green v. Sec’y of Health & Human Servs., No. 13-920V, 2016 WL
2756175, at *2 (Fed. Cl. Spec. Mstr. Apr. 14, 2016). L.A. v. Sec'y of Health & Human Servs., No. 12-
629V, 2016 WL 1104860, at *5 (Fed. Cl. Spec. Mstr. Feb. 29, 2016); Miller v. Sec'y of Health &
Human Servs., No. 13-914, 2016 WL 2586700, at *7.

       I recently decided this issue as well, finding that although the Shoemaker Firm is not
physically located in the D.C. forum, they should be awarded forum rates because the local rate in
Vienna, Virginia is not significantly different from the forum rates. See Jaffri v. Sec’y of Health and
Human Servs., No. 13-484V, slip op. (Fed. Cl. Spec. Mstr. Sept. 30, 2016).

               a. Mr. Shoemaker

       Petitioner requests $415 per hour for Mr. Shoemaker for work performed in 2015, and $430
per hour for work performed in 2016, consistent with the determination of firm rates in McCulloch
and my own decisions. McCulloch, 2015 WL 5634323, at *19; Jaffri, No. 13-484V at *9. Mr.
Shoemaker will receive $415 per hour for work performed in 2015, and $430 per hour for his work
in 2016.

               b. Ms. Gentry

       Petitioner requests $400 per hour for Ms. Gentry for work performed in 2015, and $415 per
hour for work performed in 2016. Ms. Gentry has received similar rates for her work in the Vaccine
Program. See Jaffri, No. 13-484V, at *9. Ms. Gentry thus will be awarded $400 per hour for work
performed in 2015, and $415 per hour for work performed in 2016.

               c. Ms. Knickelbein

       Petitioner requests $350 for Ms. Knickelbein for work performed in 2015, and $363 for work
performed in 2016. Ms. Knickelbein has also been awarded these rates previously. See Jaffri, No.
13-484, at *9 (determining $365 per hour for Ms. Knickelbein’s work in 2016 was appropriate). Her
requested rates fit the range suggested in McCulloch, therefore, I will award $350 per hour for work
in 2015, and $363 per hour for work performed in 2016.




                                                  4
       B.      Hours Devoted to Matter

        As noted above, special masters are not obligated to scrutinize each entry on a billing record
in search of inefficiency. Nor has Respondent identified any objectionable billing instance or category
for me. Respondent does state a range of fees, however, which she views as more appropriate for this
case. The 11 cases cited to support that range however, are all instances where the parties have
stipulated to the amount of attorney’s fees, and thus provide me without much basis to evaluate if
work in this case was excessive. See Response at 4-5.

         I do not find that the matter was overworked. This case was resolved within one year and
required neither party to hire experts. Such circumstances therefore justify an award of the majority
of the time billed, with the following exceptions:

               a. On June 17, 2015, Mr. Shoemaker billed .4 hours to “review corr about Phil’s
       disability and discuss with Gretchen; email to client.” See Fees Motion at 7. After looking
       over the exhibits, however, I found no mention of “Phil”; Petitioner’s name is David Allen
       Mikkelson. This lack of oversight exemplifies a larger problem with the descriptions for time
       billed by Mr. Shoemaker - they are often vague - making it difficult to determine the work
       that was performed. I will strike this amount entirely.

               b. For several time entries throughout 2015 and 2016, Mr. Shoemaker billed for
       “review pleading,” for a total of .9 hours. Id. (See billed hours on 08/14/15, 08/15/15,
       08/25/15, 09/26/15, 11/11/15, 01/28/16, 02/09/2016, 03/30/2016, 04/05/2016). While it is
       difficult to tell from the description of the activity, it appears that these hours were billed to
       review minor filings on CM/ECF that amounted to one or two sentences. I will reduce the
       billed hours to .3, taking three charges from 2015 and three from 2016, leaving 2 from 2015
       and 1 from 2016. This amount represents the cumulative time I think it would take to review
       the entries in CM/ECF.




                                                   5
       E.       Fees Award Summary

       Based upon all of the above, I award the following attorney’s fees:

            Attorney    Year that Work      Hours Awarded           Hourly Rate     Total Amount
                        was Performed                                 Awarded
   Mr. Shoemaker                  2015                  24.7              $415         $10,250.50
                                  2016                   7.9              $430          $3,397.00
       Ms. Gentry                 2015                  5.55              $400          $2,220.00
                                  2016                  17.9              $415          $7,428.50
  Ms. Knickelbein                 2015                   9.4              $350          $3,290.00
                                  2016                     .8             $363            $290.40
                                                                          Grand Total= $26,876.40



III.   Litigation Costs

       Petitioner requests two categories of costs. First, he asks for an award of $401.20 to reimburse
himself for the cost of the filing fee and postage. I will award this as requested.

        Petitioner’s next and final category of expenses is for $1,041.12, incurred solely by the
Shoemaker Firm as costs to obtain medical records and copying. Id. at 18. Respondent does not object
to these costs as unreasonable, and upon review of the record I find that they are acceptable. See
Response at 4-5. I therefore award this sum in its entirety.

                                           CONCLUSION

        The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C. § 300aa-
15(e). Based on the reasonableness of Petitioner’s request, as well as my reductions and hourly fee
rate decisions set forth above, I hereby GRANT in part Petitioner’s Motion for attorney’s fees and
costs, as follows:

            Contested Sum     Amount Requested                     Reduction         Total Awarded
        Shoemaker Firm                   $27,295.90                   $419.50             $26,876.40
        Attorney’s Fees
   Shoemaker Firm Costs                   $1,041.12                      none              $1,041.12

  David Mikkelson’s Fees                   $401.20                       none                $401.20




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       Accordingly, I award a total of $27,917.52 as a lump sum in the form of a check jointly
payable to Petitioner and Petitioner’s counsel, Cliff Shoemaker, Esq. I award separate costs payable
to David Mikkelson in the amount of $401.20. In the absence of a motion for review filed pursuant
to RCFC Appendix B, the clerk of the Court is directed to enter judgment herewith.4


         IT IS SO ORDERED.

                                                                     /s/ Brian H. Corcoran
                                                                        Brian H. Corcoran
                                                                        Special Master




4
  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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