    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                 Filed: December 2, 2019

* * * * * * * * * * * * * *
KRISTIN LEARA,             *
                           *
     Petitioner,           *                          No. 17-1197V
                           *                          Special Master Oler
v.                         *
                           *                          Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Anne C. Toale, Maglio Christopher and Toale, Sarasota, FL, for Petitioner.
Sarah C. Duncan, United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On September 6, 2017, Kristin Leara (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that she developed a right arm injury as a result of the influenza (“flu”)
vaccination she received on September 9, 2014. See Petition, ECF No. 1. On February 25, 2019,
Petitioner filed a Motion to voluntarily dismiss her petition, which the undersigned granted on the
same day, dismissing the petition for insufficient proof. Decision, ECF No. 30.

      On August 27, 2019, Petitioner filed an application for final attorneys’ fees and costs. ECF
No. 33 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of

1
  The undersigned intends to post this Ruling on the United States Court of Federal Claims'
website. This means the ruling 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, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access. Because this unpublished
ruling contains a reasoned explanation for the action in this case, the undersigned is 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).
2
    National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
$23,603.95, representing $20,393.10 in attorneys’ fees and $648.68 in attorneys’ costs incurred by
Maglio Christopher and Toale, and $1,125.00 in attorneys’ fees and $1,437.17 in costs incurred
by Petitioner’s previous counsel, Mr. Dennis Potts. Fees App. at 1-2. Pursuant to General Order
No. 9, Petitioner states that she has not incurred any costs related to this litigation. Id. at 2.
Respondent responded to the motion on September 10, 2019, stating that “Respondent is satisfied
the statutory requirements for an award of attorneys’ fees and costs are met in this case” and
requesting that the undersigned “exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 35. Petitioner filed a reply on September
10, 2019, reiterating her belief that the requested amount of fees and costs was reasonable. ECF
No. 36.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

        Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, the undersigned does not doubt that the petition was filed
in good faith, and although the petition was eventually dismissed, the undersigned finds that there
was reasonable basis to file the petition. Respondent has also not challenged the reasonable basis
of the petitioner. Accordingly, a final award of fees and costs is appropriate.

        It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.

       a. Reasonable Hourly Rates

       Petitioner requests the following rates for the work of her attorneys: for Ms. Anne Toale,
$378.00 per hour for work performed in 2017, $402.00 per hour for work performed in 2018, and
$420.00 per hour for work performed in 2019; for Ms. Danielle Strait, $322.00 per hour for work
performed in 2018, and $340.00 per hour for work performed in 2019; and for Mr. Dennis Potts,
$250.00 per hour for all work performed. Fees App. Ex. 1 at 17, Ex. 6 at 4. The undersigned finds


                                                  2
the rates sought herein to be reasonable and consistent with what counsel has previously been
awarded for their Vaccine Program work. See Robertson v. Sec’y of Health & Human Servs., No.
17-327V, slip op. at 2 (Fed. Cl. Spec. Mstr. Nov. 22, 2019) (finding Mr. Potts’ hourly rate to be
reasonable).

       b. Reasonable Hours Expended

         Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

        Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has
provided sufficiently detailed descriptions for the tasks performed, and, upon review, the
undersigned does not find any of the billing entries to be unreasonable. Respondent also did not
indicate that he finds any of the billing entries to be unreasonable. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $20,393.10 for Maglio Christopher and Toale, and
$1,125.00 for Mr. Potts.

       c. Attorneys’ Costs

         Like attorneys’ fees, a request for reimbursement of attorneys’ 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 $648.68 in attorneys’ costs for Maglio Christopher and Toale, and $1,43717 in attorneys’
costs for Mr. Potts. This amount is comprised of acquiring medical records, the Court’s filing fee,
postage, and review of Petitioner’s records by Dr. Gregory K. Yim. All of these costs are typical
of Vaccine Program litigation and are reasonable in the undersigned’s experience, and Petitioner
has provided adequate documentation supporting the request. Accordingly, the requested
attorneys’ costs are reasonable and shall be reimbursed in full.

II.    Conclusion

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and her counsel as follows:

 Attorneys’ Fees Requested (MCT)                                     $20,393.10
 Attorneys’ Fees Requested (Dennis Potts)                             $1,125.00
 (Reduction to Fees)                                                      -
 Total Attorneys’ Fees Awarded                                       $21,518.10

 Attorneys’ Costs Requested (MCT)                                      $648.68

                                                 3
    Attorneys’ Costs Requested (Dennis Potts)                         $1,437.17
    (Reduction of Costs)                                                  -
    Total Attorneys’ Costs Awarded                                    $2,085.85

    Total Amount Awarded (MCT)                                        $21,041.78
    Total Amount Awarded (Dennis Potts)                                $2,562.17

    Total Amount Awarded                                              $23,603.95

          Accordingly, the undersigned awards the following:

      1) a lump sum in the amount of $21,041.78, representing reimbursement for reasonable
         attorneys’ fees and costs, in the form of a check payable jointly to Petitioner and
         Petitioner’s counsel of record, Ms. Anne Toale; and

      2) a lump sum in the amount of $2,562.17, representing reimbursement for reasonable
         attorneys’ fees, in the form of a check payable jointly to Petitioner and Petitioner’s
         former counsel, Mr. Dennis Potts.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.3

          IT IS SO ORDERED.

                                                s/Katherine E. Oler
                                                Katherine E. Oler
                                                Special Master




3
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).
                                                  4
