In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

******************** *
ZANIA LEWIS,             *
                         *                          No. 15-907V
             Petitioner, *                          Special Master Christian J. Moran
                         *
v.                       *                          Filed: February 20, 2020
                         *
SECRETARY OF HEALTH      *                          Expert costs,
AND HUMAN SERVICES,      *                          reconsideration denied
                         *
             Respondent. *
******************** *

Michael A. Baseluos, Baseluos Law Firm, PLLC, San Antonio, TX, for Petitioner;
Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for
Respondent.

  PUBLISHED ORDER DENYING MOTION FOR RECONSIDERATION
    OF DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

       A January 24, 2020 decision found that a reasonable amount of attorneys’
fees and costs was $160,882.10. On February 13, 2020, petitioner Zania Lewis
filed a motion for reconsideration, presenting new information. Because Ms.
Lewis has not met the standards for reconsideration or otherwise shown that the
January 24, 2020 decision was unreasonable, her motion for reconsideration is
DENIED.


       1
         Because this order 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). This means the order will be
available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the
parties have 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.
                                Standards for Adjudication
      Although Ms. Lewis titles her document “motion for reconsideration,” her
motion does not provide any guidance about the rules surrounding these motions.
Special masters may grant motions for reconsideration “in the interest of justice.”
Vaccine Rule 10(e)(3). Motions for reconsideration are not intended to serve as
vehicles for the submission of evidence that could have been presented earlier. See
Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (interpreting Rule
59(a)(1) of the Court of Federal Claims); Golden Bridge Technology, Inc. v.
Apple, Inc., 758 F.3d 1362, 1369 (Fed. Cir. 2014) (following Third Circuit law);
Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1348 (Fed. Cir. 2010).
                      Background and Basis for Pending Motion
       After receiving compensation through a decision incorporating a joint
stipulation, Ms. Lewis filed a motion for an award of attorneys’ fees and costs. As
relevant to the pending motion for reconsideration, Ms. Lewis sought
reimbursement for work performed by three experts: Hamid Djalilian, an
otolaryngologist; Omid Akbari, a Ph.D. immunologist; and Larry Charleston IV, a
neurologist.

       The January 24, 2020 Fees Decision reduced the amount that was requested
for each of the three experts, based upon a lodestar calculation in which a
reasonable hourly rate was multiplied by a reasonable number of hours. The Fees
Decision noted that the experts had requested hourly rates much higher than the
rates that Ms. Lewis’s attorney had recognized as typically awarded in the Vaccine
Program. The Fees Decision also noted that with one exception, Ms. Lewis had
not presented any evidence to justify the proposed hourly rates. Finally, the Fees
Decision also found that the experts charged for an excessive number of hours.

      Twenty days after the Fees Decision was filed, Ms. Lewis filed the pending
motion for reconsideration. With her motion, Ms. Lewis filed Fee Exhibits A
through J. She later added Fee Exhibit K.2



       2
         Petitioners in the Vaccine Program typically assign numbers, rather than letters, to their
exhibits. Ms. Lewis could have followed this practice by assigning the fee exhibits the next
sequential number.

                                                     2
       The rationale of Ms. Lewis’s motion for reconsideration seems to follow
these steps: (1) petitioner could not “gauge the amount of information needed to
justify fees and costs when the Respondent does not lodge any objections or
counterarguments,” Pet’r’s Mot. at 6; (2) petitioner is now supplying additional
evidence in the form of Fee Exhibits A-K that support the proposed hourly rate
and/or the requested number of hours; and (3) thus, some additional compensation
is warranted.
                                     Analysis

       Ms. Lewis’s motion falters on her first point—allegedly not knowing how
much information to include in a motion for attorneys’ fees. It has long been
petitioners’ burden to support their motions for attorneys’ fees. A case from the
beginning of the Vaccine Program states: “The fee applicant carries the burden of
proof.” Bell v. Sec’y of Health & Human Servs., 18 Cl. Ct. 751, 760 (1989).
Quoting Martin v. United States, 12 Cl. Ct. 223, 227 (1987), Bell continues:
“Where supporting documentation is inadequate, the award may be reduced
accordingly. A party who seeks payment must keep records in sufficient detail that
a neutral judge can make a fair evaluation of the time expended, the nature and the
need for the service, and the reasonable fee to be allowed.” Id.

       This principle has not changed. To facilitate the presentation of information
with a motion for attorneys’ fees and costs, the Office of Special Masters has
issued Guidelines, which “reflect the accumulated wisdom of numerous decisions.”
Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316 (2008). The
Guidelines inform petitioners that when seeking attorneys’ fees and costs, “the
procedures and practices that apply to the evaluation of attorneys’ fees and costs
also apply to experts’ fees and costs.” Office of Special Masters, Guidelines for
Practice under the National Vaccine Injury Compensation Program (rev. Aug. 22,
2019), section X, chapter 2, paragraph D. The Guidelines detail: “Submission of
curriculum vitae and information regarding the hourly rate paid to the expert in
other fora are helpful in determining the hourly rate to be awarded.” Id.

      Ms. Lewis’s pending motion for reconsideration acknowledges none of the
authority that places a burden on petitioners to present information. Rather, Ms.
Lewis seems to suggest that because the Secretary is not interposing objections to
amounts requested in attorneys’ fees and costs, any deficiencies in her application
are correctable via a motion for reconsideration. However, this suggestion is
erroneous in two respects.



                                             3
       First, the caselaw and Guidelines refer to petitioners’ motions. “The request
for fees must be complete when submitted.” Duncan v. Sec’y of Health & Human
Servs., 99–455V, 2008 WL 4743493, at *1 (Fed. Cl. Aug. 4, 2008). Petitioners,
like Ms. Lewis, have both the burden and the opportunity to file motions with as
much supporting documentation as they wish. Even years ago when the Secretary
raised objections to the amount requested in motions for attorneys’ fees and costs,
the Secretary’s response came after the petitioners’ motion. Petitioners should not
allow the Secretary’s lack of meaningful participation to diminish how they
develop and support their motions for attorneys’ fees and costs.

       Second, the independent obligation of special masters to assess motions for
attorneys’ fees and costs for their reasonableness is a practical reason for the
petitioners’ requirement to support their motions for attorneys’ fees and costs.
Since McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018),
petitioners are aware that special masters may not award attorneys’ fees and costs
based upon the Secretary’s failure to object. Instead, special masters should
evaluate the material that is submitted. Special masters are not required to warn
petitioners about any deficiencies in fee applications. Savin, 85 Fed. Cl. at 318.

       Thus, the January 24, 2020 Fees Decision looked at what Ms. Lewis had
presented in her motion. For Dr. Djalilian and Dr. Charleston, Ms. Lewis made the
conclusory statements that their proposed hourly rates ($550-$578 per hour and
$575 per hour, respectively) were “consistent” with rates for other experts or
“commensurate with his specialty.” Pet’r’s Mot. for Attorneys’ Fees and Costs,
filed Sept. 11, 2019, at 3, 5. Ms. Lewis did not cite any cases and she did not
submit any evidence in support of these rates. For Dr. Akbari, Ms. Lewis was in a
stronger position in that she cited one case, Hernandez v. Secʼy of Health &
Human Servs., No. 16-1058V, 2018 WL 4391060 (Fed. Cl. Spec. Mstr. Aug. 20,
2018), which had found $500 to be a reasonable hourly rate for Dr. Akbari.
However, the Fees Decision declined to follow it because Hernandez seems to
assume that Dr. Akbari is a medical doctor.3

     The thrust of Ms. Lewis’s pending motion for reconsideration is a
submission of material (Fee Exhibits A-K) that she could have presented with her

       3
         Ms. Lewis’s motion for reconsideration adds two other cases, Shinskey v. Sec’y of
Health & Human Servs., No. 15-713V, 2019 WL 2064558, at *5 (Fed. Cl. Spec. Mstr. May 9,
2019) and Robinson v. Sec’y of Health & Human Servs., No. 15-967V, 2018 WL 5629850, at *3
(Fed. Cl. Spec. Mstr. Sept. 12, 2018). However, in awarding Dr. Akbari $500 per hour, Shinskey
and Robinson simply follow Hernandez.

                                                 4
motion. Ms. Lewis wants a change in the Fees Decision to avoid a precedent that
might dissuade these experts from testifying in the Vaccine Program again. Ms.
Lewis requests that the hourly rates awarded to Dr. Akbari be at least $500 per
hour, to Dr. Charleston be $575 per hour, and to Dr. Djalilian be at least $500 per
hour.

      For Dr. Akbari and Dr. Djalilian, Ms. Lewis offers a “compromise.” She
proposes that the amount awarded in compensation remain constant with any
increase in hourly rate being offset by a decrease in number of hours. Pet’r’s Mot.
for Reconsideration at 2, 6. In practical terms, Ms. Lewis’s compromise would
look something like this:

                              original decision                  compromised decision

                   hourly rate    # hours         total   hourly rate   # hours      total

Dr. Akbari          $300.00        115.6     $34,680.00    $500.00      69.36     $34,680.00

Dr. Djalilian       $375.00         117      $43,875.00    $500.00      87.75     $43,875.00


       While the undersigned appreciates the spirit of compromise, a problem is
that the January 24, 2020 Fees Decision found a reasonable number of hours for
Dr. Akbari and Dr. Djalilian to be 115.6 and 117 hours. A decrease to 69.36 and
87.75 hours would be arbitrary.
       For the reasons explained above, reconsideration is not warranted. Ms.
Lewis has not shown that she is now offering evidence that she could not have
offered earlier. If petitioners could always seek reconsideration by submitting
previously available evidence, when would litigation end? Motions for
reconsideration are not intended to allow second opportunities. See Senza-Gel
Corp. v. Seiffhart, 803 F.2d 661, 663-64 (Fed. Cir. 1986) (noting a district court
recognized that “a motion for reconsideration is not a chance at a second bite”);
Almanza v. United States, 137 Fed. Cl. 611, 617 (2018) (“Plaintiffs are not entitled
to use their supplemental application to take a second bite at the apple by arguing
and presenting evidence seeking a higher rate for services covered by the first fee
petition”); cf. Caves v. Sec’y of Health & Human Servs., 111 Fed. Cl. 774 (2013)
(denying motion for review of a decision in which special master had found that
expert’s invoice was vague and had denied a motion for reconsideration bringing
forward a revised invoice).


                                                   5
       The need for finality seems especially acute in the context of attorneys’ fees,
which, “should not result in a second major litigation.” Hensley v. Eckerhart, 461
U.S. 424, 437 (1983). Within this sphere, trial courts may use estimates to
accomplish “rough justice.” Fox v. Vice, 563 U.S. 826, 838 (2011). The January
24, 2020 Fees Decision attempted to reach this threshold at least. Moreover,
granting reconsideration for fees decision in one case necessarily consumes
judicial resources and slows the adjudication of other cases. See Anthony v. Sec’y
of Health & Human Servs., No. 14-680V, 2017 WL 521746, at *4 (Fed. Cl. Spec.
Mstr. Jan. 11, 2017).4

        Finally, Ms. Lewis’s worry about the precedential value of the Fees Decision
seems overwrought. The Fees Decision stated that Ms. Lewis basically had little to
no justification for the proposed hourly rates, and recognized that as Ms. Lewis’s
experts increase in efficiency and expertise, their hourly rate might increase. Thus,
it is easy to imagine that another special master (or even the undersigned) would
reach a different result when presented with different evidence.

                                         Conclusion
       Given the limited information Ms. Lewis provided in her motion for
attorneys’ fees and costs, the January 24, 2020 Fees Decision made reasonable
findings about the amount of attorneys’ fees and costs. Although Ms. Lewis filed
additional evidence with her motion for reconsideration, a motion for
reconsideration is not appropriate on the ground of new evidence. Thus, the
motion for reconsideration is DENIED.

      The January 24, 2020 Fees Decision remains in effect. For how an order
denying a motion for reconsideration affects the submission of a motion for
review, see Vaccine Rule 10(e)(3)(B).

       IT IS SO ORDERED.

                                                    s/Christian J. Moran
                                                    Christian J. Moran
                                                    Special Master




       4
         The speed of adjudication is not an idle concern as Ms. Lewis’s attorney often requests
updates about pending motions for attorneys’ fees and costs.

                                                   6
