    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-2008V
                                        (not to be published)


    KAREN HERGETT,
                                                                Chief Special Master Corcoran
                         Petitioner,
    v.                                                          Filed: February 4, 2020


    SECRETARY OF HEALTH AND                                     Special Processing Unit                 (SPU);
    HUMAN SERVICES,                                             Attorney’s Fees and Costs


                         Respondent.


Bradley S. Freedberg, Denver, CO, for Petitioner.

Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.

                       DECISION ON ATTORNEY’S FEES AND COSTS 1

       On December 21, 2017, Karen Hergett 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 Guillain-Barre Syndromé as a result
of an influenza vaccine received on October 19, 2016. (Petition at 1-3). On September
11, 2019, a decision was issued by then Chief Special Master Dorsey awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 39).




1  Because this unpublished decision contains a reasoned explanation for the action in this case, I am
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). 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, I agree that the identified material fits within this definition, I will redact 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).
       On June 29, 2019, prior to the conclusion of the case, Petitioner filed a final
application for attorney’s fees and costs (ECF No. 34). In that application, Petitioner did
not submit supporting documentation for requested costs, and requested hourly rates
exceeding the rate previously set for the same counsel for 2017 in Mackey v. Sec’y of
Health & Human Servs., No. 16-1289V, 2018 WL 3596801 (Fed. Cl. Spec. Mstr. May 10,
2018), and that exceeded the fee schedule for 2017 and 2018.

       On August 2, 2019, a status conference was held between Petitioner’s counsel
Bradley Freedberg, staff attorneys Eileen Vachher and Andrew Sterling, and
Respondent’s counsel Adriana Teitel to discuss the premature filing. Mr. Sterling informed
Petitioner’s counsel that there were multiple errors within the application, including
missing supporting documentation. Mr. Sterling also noted issues with the hourly rates
requested for the work done by Mr. Freedberg and Greg Cairns, and suggested that when
the fee application was re-submitted, Petitioner should address how these rates were
treated in Mackey. An Order striking the application for fees was filed on August 5, 2019.
(ECF No. 36). Within the Order it was recommended that Mr. Freedberg review his hourly
rates, the descriptions of time billed and ensure that all supporting documentation is
properly filed when a motion for fees was refiled.

        On December 4, 2019, Petitioner re-filed her application for attorney’s fees and
costs. (ECF No. 45). Petitioner is requesting a total award of $26,544.50 (representing
$26,044.50 in fees and $500.00 in costs). In accordance with General Order #9 Petitioner
filed a signed statement indicating that she incurred no out-of-pocket expenses. (ECF No.
41). In the refiled fees application, however, Petitioner again requested reimbursement
of costs without providing supporting documentation. Petitioner adjusted the hourly rate
requested for the work billed by Mr. Freedberg and Mr. Cairns, lowering the rate
requested for Mr. Freedberg’s work to $410 per hour, but without explanation increasing
the rate requested for Mr. Cairns’ work from $425 per hour to $450 per hour. No
explanation was provided for these rates, and Petitioner did not otherwise address the
rates set for Mr. Freedberg and Mr. Cairns in Mackey.

        Respondent reacted to the motion on December 18, 2019, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, and deferring to the Court’s discretion to determine the amount to be
awarded. (ECF No. 46). Petitioner did not file a reply thereafter.

                                       ANALYSIS

      The Vaccine Act permits an award of reasonable attorney’s 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). The petitioner “should present adequate proof [of the attorney’s
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.

                         A. Hourly Rates

       Petitioner requests the rate of $410 per hour for all time billed by attorney Bradley
Freedberg, and the rate of $450 per hour for all time billed by attorney Greg Cairns of the
firm Cairns & Associates, P.C. 3 (ECF No. 45 at 2).

                                 i.      Hourly rates for Bradley S. Freedberg

      Mr. Freedberg attests that he has been a licensed attorney since 1990, placing
him the range of attorneys with 20 – 30 years’ experience on the OSM Attorney’s Forum
Hourly Rate Schedule. 4 (ECF No. 45-1 at 1). However, Mr. Freedberg was previously
awarded an hourly rate of $358 for time billed in 2017. See Mackey v. Sec’y of Health &
Human Servs., No. 16-1289V, 2018 WL 3596801, (Fed. Cl. Spec. Mstr. May 10, 2018).

3 Petitioner’s application for attorney fees refers to Mr. Cairns as “associated counsel” to Mr. Freedberg in

this case. ECF No. 45-1 at 2.
4The OSM Attorneys’ Forum Hourly Rate Fees Schedules for 2015 – 2019 can be located on the court’s
website. http://www.cofc.uscourts.gov/node/2914
In Mackey, the special master’s assessment of Mr. Freedberg’s hourly rates concluded
that they should fall on the lower end of the McCulloch fees range, due to Mr. Freedberg’s
lack of experience in the Vaccine Program. See McCulloch v. Health and Human
Services, 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). This is the
third case Mr. Freedberg has completed in the Program, so he remains somewhat “new”
to Vaccine Act cases. 5

        I agree with the prior Special Master’s assessment in Mackey and reduce the 2017
rate from the requested hourly rate of $410 to the previously awarded hourly rate of $358.

        I also find it necessary to reduce the requested 2018 and 2019 hourly rates for Mr.
Freedberg, as he lacks the experience in the Vaccine Program to support the requested
rates. Based on my experience and the application of the factors discussed in McCulloch,
I find the rate of $375 for 2018 and for 2019 the rate of $390 per hour to be a more
appropriate hourly rates based on Mr. Freedberg’s continued practice in the Vaccine
Program.

      The adjustment of Mr. Freedberg’s rates result in a reduction of attorney fees in
the amount of $1,894.00. 6

                               ii.     Hourly Rate for Gregory Cairns

       Petitioner’s motion states that “associated attorney” Gregory Cairns has over thirty
years of legal experience. (ECF No. 45-1). The billing entries show that Mr. Cairns billed
time for the year of 2018 at a rate of $450 per hour and $185 per hour for his paralegal’s
time. (ECF No. 45-3). These rates have been increased, without explanation, from rates
requested in the motion filed in June 2019.

      Given that Mr. Cairns is not an attorney admitted to practice in the Court of Federal
Claims, a reduction of his requested hourly rate is appropriate. An attorney who is not
admitted to practice before this Court is not eligible to collect fees at an admitted

5Mr. Freedberg has two cases still pending before this Court. He was awarded reduced attorney fees and
costs in Mackey v. Sec’y of Health & Human Servs., No. 16-1289, 2018 WL 3596801 (Fed. CL. Spec. Mstr.
May 10, 2018) and denied fees and costs in Highland v. Sec’y of Health & Human Servs., No. 17-1333V,
2018 WL 818266, (Fed. Cl. Spec. Mstr. January 19, 2018).
6This amount consists of ($410 - $358 = $52 x 14.50 hrs = $754.00) + ($410 - $375 = $35 x 24 hrs =
$840.00) + ($410 - $390 = $20 x 15 hrs = $300) = $1,894.00.
attorney’s rate for his work. See Underwood v. Sec’y of Health & Human Servs., No. 00-
357V, 2013 WL 3157525, (Fed. Cl. Spec. Mstr. May 31, 2013). 7

       In Mackey, the special master found that “Mr. Freedberg operated outside the
Vaccine Rules and the Court of Federal Claims Rules” by not ensuring Mr. Cairns was
admitted to practicing in the Court of Federal Claims. Mackey at *8. At the time of this
case Mr. Freedberg was aware that Mr. Cairns’ time should not have been billed at a full
attorney rate. Just as in Mackey, Mr. Cairns’ work was more of a supporting paralegal. In
addition, rather than addressing how Mr. Cairns billing rate was addressed in Mackey as
requested in the August 5, 2019 Order striking the previous fee application, Mr. Freedberg
not only did not address Mackey, but inexplicably increased the hourly rate billed for Mr.
Cairns’ work. For that reason, I shall reduce Mr. Cairns’ requested from $450 per hour to
the rate of $150 per hour for 2018, which is more in line to that of a supporting paralegal
in the Vaccine Program. This results in a reduction of attorney fees in the amount of
$2,220.00. 8 In addition, Mr. Freedberg’s failure to address the hourly rates set forth in
Mackey resulted in additional time spent by the court on reviewing and analyzing his fee
application. This supports a further overall reduction set forth in section D below.

                          B. Administrative Time

         Upon review of the billing records submitted, it appears that several entries are for
tasks considered clerical or administrative. In the Vaccine Program, secretarial work
“should be considered as normal overhead office costs included within the attorney’s fee
rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human
Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014).
“[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.”
Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). Administrative
tasks were billed by both Mr. Freedberg and the paralegal for Mr. Cairns. The tasks billed
by Mr. Freedberg are: November 2, 2018 (15 mins) “Scanned W-2’s, retirement
documentations and Cigna issues” and November 3, 2018 (15 mins) “Scanned and sent
revised documents.” (ECF NO. 45-2 at 5). The entries billed by Mr. Cairns’ paralegal are:
February 1, 2018 (10.7 hrs) “Organized Medical Records” and February 15, 2018 (0.2
hrs) “Finalized Med Rec Transmitted to Mr. Freedberg.” (ECF No. 45-3).




7 In Mackey the special master went into great detail to explain that Mr. Cairns is unable to bill at the full

attorney rate while not being admitted to practice in the Court of Federal Claims.

8   This amount consists of $450 - $150 = $300 x 7.4 hrs = $2,220.00.
       As these tasks are considered administrative, they will not be reimbursed. This
results in a reduction of administrative time billed in the amount of $2,204.00. 9

                          C. Paralegal Tasks at Attorney Rates

       Attorneys may be compensated for paralegal-level work, but at a rate that is
comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec’y of Health &
Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29,
2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health
& Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016);
Riggins. v. Sec’y of Health & Human Servs., 99-382V, 2009 WL 3319818, at *20-21 (Fed.
Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535,
2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). There are multiple
paralegal-level tasks that Mr. Freedberg billed at his attorney rate, however several of
these tasks are blocked with tasks that would be considered attorney-tasks. I am unable
to determine what amount of time was spent on tasks considered paralegal and what
tasks would be considered attorney tasks. Thus, the only practical way to address this
problem is the overall reduction set forth in section D below.

                          D. Other

        After reviewing all documentation filed by Mr. Freedberg, multiple discrepancies
have been found within the billing records. For example, Mr. Freedberg claims he is
requesting “forty-seven (48.5) total billed attorney hours.” (ECF No. 45 at 1). The
discrepancy with the written amount and numerical amount could be a typographical
error, but another discrepancy with the total of hours is within the invoice, as Mr.
Freedberg then asks for 45 hrs 15 mins of time. (ECF No. 45-2). Upon further review of
the hours requested, it appears that they total yet another amount, 53.50. In addition to
the inconsistency of the total of hours, Mr. Freedberg continued to confuse non-
compensable tasks with billable tasks, billing paralegal tasks at attorney rates, not filing
all supporting documentation for his requests and knowingly billing at an unsuitable rate. 10
It is counsel’s burden to properly document any and all fees and costs that are requested
that includes the total amount of hours requested, description of time billed, and rates
billed.

      Mr. Freedberg’s continuing inconsistency caused judicial inefficiency, not just with
the motion for attorney fees, but in the case as a whole. Mr. Freedberg disregarded the

9 This amount consists of the already reduced rate of ($375 x 0.50 hrs = $187.50) + ($185 x 10.9 hrs =

$2,016.50) = $2,204.00.

10   See (ECF No. 45-2 at 1-7).
rules of the Vaccine Court, causing additional orders to be filed and not abiding by filed
orders, resulting in either additional orders being filed, or conferences being held with the
Court. 11 Mr. Freedberg’s failure to comply with the rules of the Court has caused delay
and inefficiency, contrary to the purpose of the Special Processing Unit.

       It is for these reasons I reduce Mr. Freedberg’s overall fees request by thirty
percent. This results in a reduction of $5,917.95. 12

                                          ATTORNEY COSTS

       Petitioner requests $500.00 in overall costs. (ECF No. 45-2). On December 30,
2019, an order was filed requesting Mr. Freedberg submit any and all receipts, invoices,
or other proof of payment for the requested costs. (ECF No. 47). Mr. Freedberg submitted
electronic correspondence to the SPU Fees and Costs paralegal (copying counsel for
Respondent) stating that only $400 of his request was for the Court’s filing fee and the
remaining amount was copy costs that are charged to his office and paid through his
monthly rent. Being that there is no documentation to support this, I shall award the
$400.00 for the filing fee, and deny the remaining $100.00 requested for costs.

                                             CONCLUSION

       The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT IN PART Petitioner’s application for attorney’s fees
and costs as follows:




11Three orders were issued striking documents filed by Petitioner and has, in the interest of expediency,
accepted filings that did not comply with court rules.

On February 22, 2018, Petitioner’s Notice of Intent to File on Compact Disc was stricken because rather
than filing a CD, Petitioner submitted a thumb drive and in addition, the filing was not signed by counsel of
record (ECF No. 11). On March 9, 2018, it was noted that Petitioner had filed 33 exhibits that were not
labeled with exhibit numbers or independently pagination as required but indicated that the records would
be accepted provided that Petitioner filed a detailed exhibit list/table of contents. Scheduling Order, issued
Mar. 9, 2018 (ECF No. 14). On March 26, 2018, Petitioner’s March 20, 2018 filing labeled table of contents
was stricken explaining that the document attached was a “Notice of Filing of Exhibits” and did not contain
an exhibit list or table of contents. Scheduling Order, issued Mar. 26, 2018 (ECF No. 17).

In addition, as noted above, Petitioner prematurely filed an application for attorneys’ fees and costs, which
was stricken on August 5, 2019 following a telephonic status conference (ECF No.36).
12This amount consists of the total of fees after the previously discussed rate and administrative reductions.
$19,726.50 x .30 = $5,917.95.
       Attorney’s Fees:
       Total Requested:                                                 $26,044.50
       Less Rate Adjustment for Mr. Freedberg:                          ( 1,894.00)
       Less Rate Adjustment for Mr. Cairns:                             ( 2,220.00)
       Less Administrative Time:                                        ( 2,204.00)
       Less overall reduction:                                          ( 5,917.95)
       Total Attorney’s Fees:                                           $13,808.55
       Attorney’s Costs:
       Total Requested:                                                  $ 500.00
       Less Costs with no documentation:                                ($ 100.00)
       Total Attorney’s Costs:                                          $ 400.00


       Total Fees and Costs Awarded:                                    $ 14,208.55



        I award a total of $14,208.55 (representing $13,808.55 in attorney’s fees and
$400.00 in costs) as a lump sum in the form of a check jointly payable to Petitioner and
Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix B
to the Rules of the Court), the Clerk shall enter judgment in accordance with this
decision. 13

IT IS SO ORDERED.

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




13 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
