         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-0004V
                                      Filed: April 11, 2018
                                         UNPUBLISHED


    JAMES CANTWELL,
    Parent of M.C., deceased,

                        Petitioner,                          Special Processing Unit (SPU);
    v.                                                       Attorneys’ Fees and Costs

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Koby Kirkland, Whitehurst Harkness Brees Cheng Alsaffar & Higginbotham PLLC,
Austin, TX, for petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

        On January 3, 2017, James Cantwell (“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 sought compensation for the death
of his son, M.C., on March 3, 2015, allegedly due to intussusception following a
rotavirus vaccination, which was administered on February 15, 2015. Petition at 1. On
July 19, 2017, the undersigned issued a decision awarding compensation to petitioner
based on the respondent’s proffer. (ECF No. 25).



1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
        On January 3, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 31). Petitioner requests attorneys’ fees in the amount of $14,457.50 and attorneys’
costs in the amount of $5,618.11. Id. at 1. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. (ECF No. 31-5). Thus, the total amount requested is $20,075.61.

        On January 12, 2018, respondent filed a response to petitioner’s motion. (ECF
No. 32). 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.

      Petitioner has filed no 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
several reasons.

       The Federal Circuit endorses the lodestar approach to determine reasonable
attorneys’ fees and costs. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,
1349 (Fed. Cir. 2008). Under the lodestar approach, a court makes “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 1347-48 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). After this initial calculation, the court “may then
make an upward or downward departure to the fee award based on other specific
findings.” Id. at 1348.

        The reasonableness standard applies both to attorneys’ fees and costs. Savin v.
Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 315 (2008). The application must
provide sufficient detail and explanation of the time billed so that a special master may
adjudge the reasonableness of the amount requested. Bell v. Sec’y of Health & Human
Servs., 18 Cl. Ct. 751, 760 (1989); Rodriguez v. Sec’y of Health & Human Servs., No.
06-559V, 2009 WL 2568468, at *8 (Fed. Cl. Spec. Mstr. July 27, 2009). It is the
petitioner who bears the burden of adequately documenting the fees and costs.
Rodriguez, 2009 WL 2568468, at *8.

       Special masters need not conduct a line-by-line evaluation of a petitioner’s fee
application to determine a reasonable number of hours expended. Wasson v. Sec’y of
Health & Human Sevs., 24 Cl.Ct. 482, 484, aff’d in relevant part, 988 F.2d 131 (Fed. Cir.
1993); Nelson v. Sec’y of Health & Human Servs., No. 14-70V, 2015 WL 9302973 at *2
(Fed. Cl. Spec. Mstr. Nov. 30, 2015) (“It is within the special master’s discretion to
reduce the number of hours by a percentage of the amount charged, rather than making
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a line-by-line determination regarding the reasonableness of the charges”). Special
masters have discretion to discern whether any of the requested hours are “excessive,
redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (internal quotations and citations omitted). In
contemplating reductions, special masters have the latitude to “consider their prior
experience in reviewing fee applications and even dealings with the specific attorney
involved.” Savin, 85 Fed. Cl. at 315. It is further within the purview of special masters
to reduce a fee request sua sponte, apart from or in the absence of respondent’s
objections, and without providing petitioner notice or opportunity to respond. Sabella v.
Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009); Estate of Bondi by
Shoemaker v. Sec’y of Health & Human Servs., No. 12-476V, 2017 WL 1046526 at *2
(Fed. Cl. Spec. Mstr. Feb. 23, 2017).

        The undersigned finds Mr. Kirkland billed a total of 14.8 hours for time spent on
tasks which are not reimbursable 3. These tasks include preparing his bar admission to
the Court of Federal Claims, research malpractice claims, and time spend on preparing
& filing corrected reports with the court. “[I]t is inappropriate for counsel to bill time for
educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y
of Health & Human Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec.
Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his client to learn
about an area of law in which he is unfamiliar. If an attorney may not bill his client for
this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of
Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr.
July 13, 2007). The undersigned therefore reduces the requested fees by $3,401.25.

       Petitioner requests compensation for a number of tasks considered to be
paralegal work and billed at an attorney rate. 4 Upon review of the billing invoices
submitted, Mr. Kirkland billed 5.55 hours for work considered paralegal in nature.
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

3Examples of these entries include: January 7, 2016 (3.5 hours) “Research whether ‘relating to the
vaccination’ encompasses related state malpractice claim”; October 5, 2016 (0.5 hrs) “Researching
admission to Court of Federal Claims; asked for reference letters; drafted letter requesting Certificate of
Good Standing from Supreme Court of Texas”; October 12, 2016 (0.2 hrs) “Prepare documents for
Vaccine Court admission:’ and July 17, 2017 (0.3 hrs) “Totaling time spent on case to date”. (ECF No.
31-3, #2, 5).
4
  For example: November 30, 2016 (0.5 hrs) “Incorporating new medical records into exhibits; re-
formatting and re-numbering exhibits.”; December 28, 2016 (0.6 hrs) “Checking addresses for service and
filing; final arrangement before filing; saving all documents as PDFs; printing and preparing mailing to
Court and HHS”; and January 4, 2017 (0.6 hrs) “Compressing exhibits’ PDF file sizes”. The undersigned
notes that these are just a few examples of the billing entries in this claim which reflect paralegal work
billed at the attorney rate. (ECF No. 31-3, 4).

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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, *20-
21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No.
99-535, 2008 WL 5747914, *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). The undersigned
reduced the rate to $135 for these tasks and therefore reduces the requested fees by
$635.50.

       Petitioner requests compensation for Mr. Kirkland at the following rates; $200 per
hour for work performed in 2015; $225 per hour for work billed in 2016; $250 per hour
for work performed in 2017 and $275 per hour for work performed in 2018. (ECF No.
31-3). The undersigned finds the requested rates excessive based on his overall legal
experience, the quality of work performed, his experience in the Vaccine Program, and
his reputation in the legal community and the community at large. 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). Due to Mr. Kirkland’s inexperience in the Vaccine Program,
the undersigned does find cause to reduce the hourly rates to the following: $200 an
hour for attorney work billed in 2015 & 2016; $215 per hour for work performed in 2017;
and $225 per hour for work performed in 2018. 5 Therefore, attorneys’ fees requested
are reduced by $1,249.00.

       The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). In sum, the undersigned finds that petitioners are entitled to reasonable
attorneys’ fees and costs as described above and awards petitioner attorneys’ fees in
the reduced amount of $9,171.75 and costs in the amount of $5,618.11.

      Accordingly, the undersigned awards the total of $14,789.86 6 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Koby Kirkalnd.




5
 These rates are derived from the undersigned’s application of the OSM Attorneys’ Forum Hourly Rate
Schedules for years 2015 - 2018 available on the U.S. Court of Federal Claims website at
www.cofc.uscourts.gov/node/2914. The undersigned incorporates by reference all of the explanatory
notes contained in these rate schedules. See also McCulloch, 2015 WL 5634323, at *19.

6This 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).

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        The clerk of the court shall enter judgment in accordance herewith. 7


IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




7 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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