         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-0548V
                                     Filed: August 29, 2018
                                         UNPUBLISHED


    BALA MUCCALA,

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

                       Respondent.


Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Lara Ann Englund, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

       On April 18, 2017, 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 a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a Tetanus-diphtheria-acellular pertussis (“Tdap”)
vaccine administered on September 11, 2015. Petition at 1-2. On July 27, 2018, the
undersigned issued a decision awarding compensation to petitioner based on the
parties’ stipulation. (ECF No. 40).

       On August 2, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 44). Petitioner requests attorneys’ fees in the amount of $17,712.00 and attorneys’
costs in the amount of $1,115.90. Id. at 1. In accordance with General Order #9,

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.

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).
petitioner's counsel represents that petitioner incurred no out-of-pocket expenses. Id. at
2. Thus, the total amount requested is $18,827.90.

        On August 15, 2018, respondent filed a response to petitioner’s motion. (ECF
No. 45). 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.

        By email communication on August 16, 2018, petitioner‘s counsel confirmed
petitioner did not intend to file a reply.

      The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees and costs to be awarded
appropriate for the reasons listed below.

       Upon review of the billing records submitted, it appears that a number of 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
attorneys’ 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). A total of 2.20 hours 3 was billed by the paralegal on tasks considered
administrative, consisting of reviewing invoices and processing payments. For these
reasons the undersigned will reduce the attorney’s fees requested in the amount of
$297.00. 4

      The undersigned has reviewed the request for attorney costs incurred by Mr.
Downing in the case, such as expenses for photocopying, record duplication, and
postage, and finds a majority of such expenses to be reasonable. However, the
undersigned will reduces several requested expenses as administrative expenses, such
as costs associated with “incoming faxes.” (ECF No.at 44-1 at 31). In the
undersigned's view, these claimed costs by Mr. Downing are better categorized as

3 Examples of these entries include: January 19, 2017 (0.20 hrs) “Process payment for medical records to

Craig H. Weinstein, MD-Sports & Orthopaedic Specialists”, June 28, 2017 (0.20 hrs) “Process payment to
Citrus Medical Clinic for medical records.” and April 27, 2018 (0.20 hrs) Receive and review invoice for
medical records to Foothill Sports Medicine.” (ECF No 44-1 at 10, 14 and 18). These entries are merely
examples and are not exhaustive.

4   This amount consists of 2.2 hours at $135 per hour.

                                                      2
overheard expenses inherent in operating a law firm, and thus not compensable. See
Bourche v. Sec'y of Health & Human Servs., No. 15-232V, 2017 WL 2480936, at *5
(Fed. Cl. May 11, 2017) (noting that the operation of a fax machine is part of a law firm's
general overhead, and cautioning Mr. Downing to exercise billing judgment in the
future). This results in a reduction amount of $171.50.

      The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). 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 $18,359.40 5 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Andrew Donald Downing.


        The clerk of the court shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




5 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” 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).

6 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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