         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-01344V
                                   Filed: September 28, 2018
                                         UNPUBLISHED


    CAROLYN E. CECIL,

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

                       Respondent.


Glen Howard Sturtevant, Jr., Rawls Law Group, Richmond VA, for petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

      On October 14, 2016, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) following an influenza (“flu”) vaccination administered on
October 17, 2013. Petition at 1. On July 5, 2018, the undersigned issued a decision
awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 41).

      On August 13, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 45). Petitioner requests attorneys’ fees in the amount of $40,145.86 and attorneys’

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the
action in this case, 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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
costs in the amount of $11,676.88. Id. at 2. Additionally, in compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred $21.40 in
out-of-pocket expenses. Id. at 2. Thus, the total amount requested is $41,335.14.

        On August 24, 2018, respondent filed a response to petitioner’s motion. (ECF
No. 46). 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 the
reasons listed below.

       I. Legal Standard

       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
                                             2
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).

          II. Hourly Rates

          A. Christina Dwyer

        Petitioner requests compensation for Attorney Christina Dwyer at a rate of $315
per hour for time billed in 2017. 3 (ECF No. 45-1 at 22). In the affidavit submitted by
Paul Walkinshaw, he attests Ms. Dwyer “was admitted to the Virginia State bar in
October 2015.” (ECF No. 48-1 at 1). This places Ms. Dwyer in the range of attorneys
with less than 4 years’ experience based on the Court’s Attorneys’ Hourly Rate Fee
Schedule. 4 Under the Court’s Fee Schedule, an attorney in this experience range is
entitled to hourly rates between $153 - $230 for work performed in 2017. The requested
rate for 2017 exceed the range for attorneys with less than 4 years’ experience, and the
undersigned finds the requested rate excessive based on her overall legal experience,
the quality of work performed, and her experience in the Vaccine Program. See
McCulloch, 2015 WL 5634323 at *17 (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). Based on Ms. Dwyer’s inexperience in the
Vaccine Program 5, the undersigned finds an appropriate hourly rate for Ms. Dwyer is




3   Ms. Dwyer billed 2.50 hours in 2017.
4
    The Fee Schedules for 2015 - 2018 can be accessed at http://www.cofc.uscourts.gov/node/2914
5
 This is Ms. Dwyer’s first, and only, case in the Vaccine Program. Moreover, she assisted on this case
and was not listed as attorney of record.

                                                    3
$153 per hour for work performed in 2017. 6 Therefore, the request for attorneys’ fees is
reduced by $405.00. 7

          III. Attorney Costs

       Like attorney’s fees, a request for reimbursement of attorney’s costs must be
reasonable. Perreita v. Sec’y of Health & Humans Servs., 27 Fed.Cl. 29, 34 (Fed. Cl.
1992). Petitioner requests $11,676.88 in attorney’s costs. These costs are associated
with medical records, filing fees, expert reports and postage. Proper documentation
supporting these requests was filed and the undersigned finds the majority of costs to
be reasonable with one exception.

       The undersigned finds that the requested costs of $1,624.89 for “Advocate
Capital Interest” to be unreasonable. 8 These costs consist of finance and origination
charges in the amount of $1,624.89 associated with a loan advance from AdvoTrac,
which markets itself as “case expense funding service.” (ECF No. 45-2 at 34). However
interest on a loan taken out by Rawls Law Group is not reimbursed in Vaccine Program
cases. See Jeffries v. Sec’y of Health & Human Servs., petitioner sought attorneys’
costs for a. Jeffries v. Sec’y of Health & Human Servs.,No. 99-0670V, 2006 WL
3903710, at *18 (Fed. Cl. Spec. Mstr. Dec. 15, 2006) (citing Library of Congress v.
Shaw, 478 U.S. 310, 317 (1986) (finding that finance charges on an outstanding bill
incurred by petitioner amounted to interest which, in the absence of a waiver of
sovereign immunity, cannot be assessed against the United States.). The undersigned
notes that a foreseeable costs of taking out a loan is the accrual of interest and
origination fees. These costs are no compensable by the Vaccine Program. This results
in a reduction of attorneys’ costs in the amount of $1,624.89.

      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 IN PART petitioner’s motion for attorneys’ fees and costs.




6These rates are derived from the undersigned’s application of the OSM Attorneys’ Forum Hourly Rate
Schedules for 2015-2016 and 2017 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 v. Sec’y Health & Human Servs., 09-293V, 2015
WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

7   This amount consists of $315 - $153 = $162 x 2.5hrs = $405.00.

8This amount consists of $1,424.92 in “Total Finance Charges” and $199.97 in “Total Origination Fees.”
(ECF No. 45-2 at 36).

                                                     4
        Accordingly, the undersigned awards the total of $39,305.25 9 as follows:

             •   A lump sum of $39,283.85, representing reimbursement for
                 attorneys’ fees and costs, in the form of a check payable jointly to
                 petitioner and petitioner’s counsel, Glen Howard Sturtevant, Jr. ;
                 and

             •   A lump sum of $21.40, representing reimbursement for petitioner’s
                 costs, in the form of a check payable to petitioner.

        The clerk of the court shall enter judgment in accordance herewith. 10

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




9 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).

10Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
                                                     5
