    In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS
                                   Filed: April 30, 2019

* * * * * * * * * * * * * *
SHIRLEY DEW,               *
                           *
     Petitioner,           *                          No. 16-1238V
                           *                          Special Master Oler
v.                         *
                           *                          Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Mark T. Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for Petitioner.
Linda S. Renzi, United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On September 30, 2016, Shirley Dew (“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 suffered vestibular neuronitis as a result of an influenza
vaccination administered on October 2, 2013. See Petition, ECF No. 1. On July 13, 2018,
petitioner filed an unopposed motion for a decision dismissing her petition, and on July 17, 2018,
the undersigned issued her Decision dismissing the petitioner for insufficient proof. Decision, ECF
No. 33.

         On January 28, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF No.

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 Because this unpublished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.
38 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $17,319.62,
representing $14,016.32 in attorneys’ fees and $3,303.30 in attorneys’ costs. Fees App at 4.
Pursuant to General Order No. 9, Petitioner has indicated that she has not personally incurred any
costs in pursuit of this litigation. ECF No. 34. Respondent responded to the motion on February
12, 2019, stating that “[i]f the Special Master is satisfied that this case as filed and proceeded with
a reasonable basis, and the Special Master further decides to exercise her discretion to award fees
and costs in this uncompensated case, then the Federal Circuit has made it clear that the
determination of the amount of reasonable attorneys’ fees is within the special master’s discretion”
and requesting that the undersigned “exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Resp’t’s Resp. at 3-4. ECF No. 29 (internal quotations omitted).
Petitioner filed a reply on February 19, 2019, reiterating her belief that the requested amount of
attorneys’ fees and costs is reasonable. Reply at 1, ECF No. 40.

       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 petition. Accordingly, a final award of fees 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 of compensation for the work of her attorney, Mr.
Mark Sadaka: $350.00 per hour for work performed in 2015, $362.95 per hour for work performed
in 2016, $376.38 per hour for work performed in 2017, and $396.00 per hour for work performed


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in 2018. Fees App. at 4. Petitioner also requests that paralegals be compensated at rates between
$135.00 per hour to $150.55 per hour depending on the year of the work. Id. These rates are
consistent with what Mr. Sadaka and his staff have consistently been awarded by the undersigned
and other Special Masters. Accordingly, no adjustment to the requested rates is necessary.

       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).

         The undersigned has reviewed the submitted billing entries and finds the number of hours
billed in this matter (68.50) to be reasonable. The billing entries provide sufficiently detailed
descriptions of the tasks performed and the amount of time it took to perform them. Respondent
also has not identified any particular entries as objectionable. Accordingly, petitioner is entitled to
the full amount of attorneys’ fees requested.

       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 $3,303.30 in attorneys’ costs. This amount consists of acquiring medical records, postage
charges, the Court’s filing fee, and a retainer paid to Dr. Marcel Kinsbourne for review of medical
records. Fees App. Ex. A at 19-20. Petitioner has provided adequate documentation of all these
expenses and all are reasonable in the undersigned’s experience. Accordingly, the requested costs
shall be awarded 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                                             $14,016.32
 (Reduction to Total Hours)                                                 -
 Total Attorneys’ Fees Awarded                                         $14,016.32

 Attorneys’ Costs Requested                                            $3,303.30
 (Reduction of Costs)                                                      -
 Total Attorneys’ Costs Awarded                                        $3,303.30



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    Total Amount Awarded                                             $17,319.62

       Accordingly, the undersigned awards a lump sum in the amount of $17,319.62,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to petitioner and petitioner’s counsel of record, Mr. Mark T. Sadaka.

        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).
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