        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-1239V
                                      Filed: June 5, 2017
                                        UNPUBLISHED

****************************
SUZETTE MCLEOD,                        *
                                       *
                    Petitioner,        *       Attorneys’ Fees and Costs;
             v.                        *       Special Processing Unit (“SPU”)
                                       *
SECRETARY OF HEALTH                    *
AND HUMAN SERVICES,                    *
                                       *
                    Respondent.        *
                                       *
****************************
Clifford Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioner.
Kathryn Robinette, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

       On September 30, 2016, Suzette McLeod (“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” or “Program”). Petitioner alleged that she
suffered injuries, including right shoulder pain caused by the trivalent influenza
vaccination she received on November 20, 2015. Petition at 1, ¶¶ 2, 13. On February
28, 2017, the undersigned issued a decision awarding compensation to petitioner based
on respondent’s proffer to which petitioner agreed. (ECF No. 21).

      On April 5, 2017, petitioner filed a motion for attorneys’ fees and costs,
requesting attorneys’ fees in the amount of $17,583.55, attorneys’ costs in the amount

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
of $230.97, and petitioner’s out-of-pocket costs in the amount of $400 for a total amount
of $18,214.52. Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Motion”) at 1
(ECF No. 25). As part of the motion, petitioner included supporting documentation such
as time sheets and receipts. Id. at 2-24. On April 8, 2017, petitioner filed an amended
motion for attorneys’ fees and costs indicating, in accordance with General Order #9,
petitioner had no out-of-pocket expenses “since the $400 filing fee was included in the
compensation paid to petitioner.” (ECF No. 26). Thus, petitioner reduced the amount of
attorneys’ fees and costs sought to $17,814.52 in her amended motion.

       On April 10, 2017, respondent filed a response. (ECF No. 27). In his response,
respondent states “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role
for respondent in the resolution of a request by petitioner for an award of attorneys’ fees
and costs.” Id. at 1. Respondent does state that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2.
Respondent further states that the “Federal Circuit has also made clear that special
masters may rely on their prior experience in making reasonable fee determinations,
without conducting a line-by-line analysis of the fee bill, and are not required to rely on
specific objections raised by respondent.” Id. Thus, respondent “respectfully
recommends that the Chief Special Master exercise her discretion and determine a
reasonable award for attorneys’ fees and costs in this case.” Id. at 3.

        On April 12, 2017, petitioner filed a reply. Petitioner’s Reply to Respondent’s
Response (“Pet. Reply”) (ECF No. 28). In her reply, petitioner argues that respondent
“incorrectly assumes [he] has no part in Petitioner’s request.” Id. at 1. Petitioner
maintains that “Respondent has an important role in responding to motions for attorneys’
fees and costs . . . [and] has a “responsibility to present evidence . . . to the Court” if he
finds petitioner’s request to be unreasonable. Id. at 1-2 (citations omitted). She suggests
“the Court may properly consider the fees and costs to be unopposed and grant them
without further analysis” if respondent fails to present such evidence. Id. at 2. Petitioner
asserts that “Respondent’s position has resulted in placing an extraordinary and
unnecessary burden on the OSM.” Id. Finally, petitioner provides additional details
regarding the work performed in this case and argues that the amount of attorneys’ fees
and costs sought are reasonable. Id. at 2-4. For two hours of time spent reviewing
respondent’s response and preparing the reply, petitioner seeks an additional $892,
billed at an hourly rate for petitioner’s counsel of $446. Id. at 4. Thus, petitioner
increased the total amount of attorneys’ fees and costs to $18,706.52.

       Petitioner seeks attorneys’ fees in the amount of $18,475.55 which reflects the
following hourly rates:

              1)   $430 for work performed in 2016 by Mr. Shoemaker;
              2)   $446 for work performed in 2017 by Mr. Shoemaker;
              3)   $415 for work performed in 2016 by Ms. Gentry;
              4)   $430 for work performed in 2017 by Ms. Gentry;
              5)   $363 and $365 for work performed in 2016 by Ms. Knickelbein; and
                                             2
                6) $378 for work performed in 2017 by Ms. Knickelbein;

Pet. Motion at 5-11. Petitioner states that work which is clerical in nature is performed
by a full-time employee acting as office manager, law clerk, and secretary, Gretchen
Shoemaker, and “is never billed for.” Pet. Replay at 3.

       The undersigned has previously awarded attorneys’ fees based upon the same
hourly rates requested in this case for work performed by these attorneys in 2016. See
Knowles v. Sec’y of Health & Human Servs., No. 16-365V, 2016 WL 8377518 (Fed. Cl.
Spec. Mstr. Nov. 21, 2016). These rates are within the ranges set forth in the Office of
Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016 which can be
found on the court’s website.3

        The undersigned finds that an increase in hourly rate is warranted for work
performed by these attorneys in 2017 but calculates the 2017 rates for Mr. Shoemaker
and Ms. Gentry using the increase in the Producer Price Index – Offices of Lawyers
(“PPI-OL”).4 Thus, the undersigned will award attorneys’ fees based upon an hourly
rate of $440 for work performed in 2017 by Mr. Shoemaker and an hourly rate of $424
for work performed in 2017 by Ms. Gentry. The undersigned will award attorneys’ fees
based upon the requested hourly rate of $378 for work performed by Ms. Knickelbein in
2017. The 2017 rate for Ms. Knickelbein is based upon the increase in PPI-OL and an
additional increase to reflect Ms. Knickelbein’s greater level of experience within her
corresponding range.5

        The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on all of the above, the undersigned finds that petitioner’s counsel is
entitled to reasonable attorneys’ fees and costs as follows:

        Total Amount of Attorneys’ Fees Sought                                   $18,475.55
        4.5 Hours Reduced from an Hourly Rate of $446 to $440                       - $27.00
        7.05 Hours Reduced from an Hourly Rate of $430 to $424                      - $42.30
        Total Amount of Attorneys’ Fee Awarded                                   $18,406.25


3 http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf
(last visited on June 5, 2017).

4 The increase in PPI-OL was recently used to calculate a new schedule for 2017 forum rates. See Office
of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2017 (“2017 Fee Schedule”) at
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf (last
visited on June 5, 2017).
5 In McCulloch, the special master listed factors, to include an increase in general and vaccine related
experience, which should be considered when determining an attorney’s appropriate hourly rate.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec.
Mstr. Sept. 1, 2015). Ms. Knickelbein’s level of experience has increased to 16 years in 2017, placing her
in the upper portion of her corresponding range of experience, 11-19 years. See 2017 Fee Schedule.
                                                    3
        Total Amount of Attorneys’ Costs Awarded                               $230.97

      Accordingly, the undersigned awards $18,637.226 as a lump sum in the
form of a check jointly payable to petitioner and petitioner’s counsel Clifford
Shoemaker.

        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




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).

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.
                                                      4
