    In the United States Court of Federal Claims
                           OFFICE OF SPECIAL MASTERS
                                       Filed: May 19, 2017
                                           No. 05-975V

*************************
WILLIAM WALSH and           *
CHRISTEN WALSH, parents of  *
S.W., a minor,              *                        UNPUBLISHED OPINION
               Petitioners, *
v.                          *                        Special Master Gowen
                            *
SECRETARY OF HEALTH         *                        Attorneys’ Fees and Costs;
AND HUMAN SERVICES,         *                        Petitioners’ Costs;
                            *                        Special Master’s Discretion
               Respondent.  *
                            *
*************************

Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC for respondent.

               DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

        On September 9, 2005, William Walsh and Christen Walsh, on behalf of their son S.W.
(“petitioners”), filed a petition for compensation under the National Vaccine Injury
Compensation Program, 42 U.S.C. §300aa-10, et seq.2 [the “Vaccine Act” or “Program”].
Petitioners allege that as a result of a diphtheria-tetanus-acellular pertussis (“DTaP”) vaccine
administered on September 19, 2002, S.W. suffered a seizure disorder and developmental delay.
Stipulation at ¶ 4. In the alternative, petitioners allege that S.W.’s seizure disorder and

1
  Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision 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 delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
she will delete such material from public access.
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).


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developmental delay were significantly aggravated by receipt of the DTaP vaccine. Id. On
November 22, 2016, I issued a decision awarding compensation to petitioners based on the
parties’ stipulation.

        On May 12, 2017, petitioners filed a Motion for Attorneys’ Fees and Costs (“Petitioners’
Motion”). ECF No. 99. Petitioner requests attorneys’ fees in the amount of $69,658.00,
attorneys’ costs in the amount of $16,907.33, and petitioner’s costs in the amount of $9,743.00.
Id. Thus, the total amount requested is $96,308.33. Id. On May 12, 2017, petitioners filed their
signed statement consistent with General Order #9 that they incurred $9,743.00 in costs related
to the prosecution of this claim and that they paid no retainer to their counsel. ECF No. 98.

        On May 18, 2017, respondent filed a Response to Petitioners’ Motion (Respondent’s
Response). ECF No. 99. Respondent states he is “satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Id. at 2. He “respectfully recommends
that the Special Master exercise his discretion and determine a reasonable award for attorneys’
fees and costs.” Id. at 3.

   I.          Reasonable Attorneys’ Fees and Costs

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42
U.S.C. § 300aa—15(e)(1). A petitioner need not prevail on entitlement to receive a fee award as
long as petitioner brought the claim in “good faith” and with a “reasonable basis” to proceed. Id.
In the present case, petitioners were awarded compensation pursuant to a joint stipulation
agreement and are therefore entitled to an award of reasonable attorneys’ fees and costs. Special
Masters have “wide discretion in determining the reasonableness” of attorneys’ fees and costs.
See Perreira v. Sec’y of Health and Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375
(Fed. Cir. 1994); see also Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1519 (Fed.
Cir. 1993) (“Vaccine program special masters are also entitled to use their prior experience in
reviewing fee applications”).

           a. Attorneys’ Fees

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys' fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, the court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347–58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.

       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 request hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d 1517 at 1521 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master's
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discretion to reduce the hours to a number that, in his 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 petitioners with notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner's
fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 729 (Fed. Cl. 2011). Just as “[t]rial court courts routinely use their prior experience
to reduce hourly rates and the number of hours claimed in attorney fee requests . . . [v]accine
program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521 (citing Farrar v. Sec'y of Health & Human Servs., 1992
WL 336502 at * 2-3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)).

                         i.    Reasonable Hourly Rate

         Petitioners request the following hourly rates:

                   2005       2006 2007 2008 2011 2012                  2013 2014 2015 2016 2017
    Ronald         $250       $260 $270 --   --   --                    $322 $400 --   $400 $409
    Homer
    Sylvia Chin-   --         --     --       --       $305 --          $315 $400 $400 --                 --
    Caplan
    Kevin          $295       --     --       --       --      --       $353 --          --       --      --
    Conway
    Christina      --         --     --       --       $203 --          $209 $300 $300 $300 $307
    Ciampolillo
    Joseph         --         --     --       --       --      --       $213 $213 $290 $290 $297
    Pepper
    Meredith       --         --     --       --       $203 $209        $213 --          $280 $280 $286
    Daniels
    Lauren         --         --     --       --       --      --       --       --      $265 $265 --
    Faga
    Paralegal      $90        $95    $98      $101 $107 $110            $112 $135 $135 $135 $138


Petitioners’ Motion Tab A. 4

        The requested rate of $265 per hour for Ms. Faga was recently approved by Chief Special
Master Dorsey in Thomure v. Sec’y of Health & Human Servs., No. 15–322v, 2016 WL
3086389 (Fed. Cl. Spec. Mstr. April 12, 2016). The rates for the other individuals are all
consistent with the rates awarded to them in McCulloch v. Sec’y of Health & Human Servs., No.
09–293v, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Requested rates for 2016-
2017 are consistent with the Office of Special Masters fee schedule, which updates the

4
 Petitioners did not request any fees for 2009 or 2010. Work in the case appears to have stopped on March 10,
2008, and began again on March 10, 2011. Petitioners’ Motion Tab A at 5-6. This case had been filed in the
Omnibus Autism Proceeding and then the claim was amended to assert a cause of action based on the seizure
disorder rather than autism.

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McCulloch rates to account for inflation in subsequent years.5 Accordingly, the undersigned
finds that the requested rates are reasonable.

                       ii.   Hours Expended

       Petitioners request compensation for 9.7 hours entered by Mr. Homer, 22.1 hours by Ms.
Chin-Caplan, 5.0 hours by Mr. Conway, 4.5 hours by Ms. Ciampolillo, 3.0 hours by Mr. Pepper,
148.2 hours by Ms. Daniels, 0.3 hours by Ms. Faga, and 143.2 hours by paralegals. Petitioners’
Motion Tab A at 89-90. Petitioners submitted billing logs listing the date, amount of time,
individual, and the nature of each task. Based on the lack of objection from respondent and my
review of Petitioners’ Motion, I find that the hours expended are reasonable and should be
awarded in full.


            b. Reasonable Costs

        Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total
of $16,907.33 in attorneys’ costs. Mot. at 1. The requested costs consist intra alia, of the filing
fee, expert fees, and costs for obtaining medical records. See generally Mot., Tab B.

        Petitioners also request reimbursement for $9,743.00 for personally-incurred costs.
Petitioners’ Motion. Petitioners’ costs consist of the fee for filing the petition and expenses
associated with establishing themselves as guardians of S.W.’s estate. Petitioners’ Motion Tab
C. I find that both the attorneys’ and petitioners’ costs are reasonable and should be awarded in
full.

                                       II. Total Award Summary

       The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
undersigned has reviewed counsel’s time records and tasks performed, and finds them
reasonable. Petitioners’ counsel submitted receipts for his and petitioners’ expenses, which the
undersigned has also reviewed and finds reasonable. See generally Petitioners’ Motion.

       Based on the reasonableness of petitioner’s request and the lack of opposition from
respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs. I will
award fees and costs as follows:

        Attorneys’ Fees Awarded                                             $69,658.00

        Attorneys’ Costs Awarded                                            $16,907.33

        Total Attorneys’ Fees and Costs Awarded                             $86,565.33


5
 See Office of Special Masters - Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016 and 2017, available at
http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (last accessed May 19, 2017).

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       Petitioner’s Costs Awarded                                   $9,743.00

       Accordingly, the undersigned awards the total of $96,308.336 as follows:

    1) A lump sum in the amount of $86,565.33, representing reimbursement for
       attorneys’ fees and costs, in the form of a check payable jointly to petitioners,
       William and Christen Walsh, and their counsel, Ronald Homer of Conway Homer,
       P.C.

    2) A lump sum in the amount of $9,743.00, representing reimbursement for
       petitioners’ costs, in the form of a check payable to petitioners, William and
       Christen Walsh.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.7

       IT IS SO ORDERED.

                                                            s/Thomas L. Gowen
                                                            Thomas L. Gowen
                                                            Special Master




6
  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,” and 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).
7
 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice not to seek review.
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