         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-1468V
                                   Filed: November 30, 2018
                                        UNPUBLISHED


    PURNA KAMI,

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

                       Respondent.


David A. Kulwicki, Mishkind Law CO., Cleveland, OH, for petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

      On October 6, 2017, 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 alleged that he suffered Guillain Barre Syndrome (GBS)
caused by his October 15, 2014 influenza (“flu”) vaccination. On September 24, 2018,
the undersigned dismissed the case without prejudice to refile.3 ECF No. 24.




1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

2National 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).
3 The case was dismissed due to petitioner’s failure to maintain contact with his attorney. Based on the
evidence filed in the case, the undersigned finds that the petition was filed in good faith and with a
reasonable basis.
    I. Procedural History

            a. Motion for Attorneys’ Fees and Costs

       On May 3, 2018, petitioner filed a motion for attorneys’ fees and costs. ECF No.
17. Petitioner requested attorneys’ fees in the amount of $7,518.75 and attorneys’
costs in the amount of $519.62. Id. at 6. On October 1, 2018, petitioner filed a
supplemental motion for attorney fees and costs in the amount of $1,256.79.4 ECF No.
26. Thus, the total amount requested is $9,295.16.

        On May 14, 2018, respondent filed a response to petitioner’s motion. ECF No.
18. Respondent argued 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 added, 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. On October 4, 2018, respondent filed a response to petitioner’s
supplemental motion for attorneys’ fees and costs. ECF No. 28. Respondent reiterated
his position from the original response filing. Petitioner filed no reply.

         The undersigned reviewed the billing records submitted with petitioner’s request
and found a reduction in the amount of fees to be awarded appropriate. On October 31,
2018, the undersigned issued a decision awarding $8,561.66 for attorneys’ fees and
costs. ECF No. 31. The award was made payable to petitioner and petitioner’s counsel
jointly.

            b. Motion for Reconsideration

        On November 15, 2018, petitioner filed a motion for reconsideration. ECF No. 32.
Petitioner argued that since the case had been dismissed for failure to prosecute due to
petitioner’s own failure to maintain contact with counsel, the award for attorneys’ fees
should be made payable to counsel alone. Id. Counsel noted that the docket reflects
counsel’s inability to contact petitioner despite persistent efforts and that “petitioner’s
counsel has a reasonable expectation that petitioner will not cooperate in negotiating a
check made payable jointly . . .” Id. Petitioner sought no further relief from the
undersigned’s October 31, 2018 decision.

      On November 15, 2018, the undersigned issued an order granting petitioner’s
motion to the extent of withdrawing the October 31, 2018 decision for further review.

4Petitioner’s counsel filed the initial motion for attorney fees and costs after filing a motion to withdraw as
attorney of record. ECF No. 15. The motion to withdraw was denied on June 12, 2018. See Non-PDF
Order. The case was dismissed without prejudice on September 24, 2018. ECF No. 24. Petitioner’s
counsel filed the supplemental motion for attorney’s fees on October 1, 2018. ECF No. 26.

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ECF No. 33. Respondent was order to file a response to the motion, if any, by
November 29, 2018. Id. Respondent filed no reply.

       The undersigned’s prior decision already having been withdrawn, the
undersigned now issues this superseding decision pursuant to Vaccine Rule
10(e)(3)(A).5

      II.      Legal Standard

         The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of
Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in
their fee requests hours that are “excessive, redundant, or otherwise unnecessary.”
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s
discretion to reduce the hours to a number that, in [her] experience and judgment, [is]
reasonable for the work done.” Id. at 1522. Furthermore, the special master may
reduce a fee request sua sponte, apart from objections raised by respondent and
without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not
engage in a line-by-line analysis of petitioner’s fee application when reducing fees.
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

        The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). He “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1.

      III.     Attorney Fees

       Petitioner requests compensation for attorney David A. Kulwicki at the rate of
$400 per hour. ECF No. 17 at 4. The undersigned finds the requested rate excessive
based on his overall legal experience, the quality of work performed, and the lack of
experience in the Vaccine Program.6 See McCulloch v. Sec’y of Health & Human

5 In the order withdrawing her prior decision, the undersigned noted that “[w]hether petitioner will be
entitled to the substantive relief requested in the motion for reconsideration will be determined after
further analysis. ECF No. 33. The undersigned has the discretion to grant or deny a motion for
reconsideration “in the interest of justice.” Vaccine Rule 10(e)(3). Based on petitioner’s motion and
respondent’s lack of objection, and for the reasons described in section V, below, the undersigned is
satisfied that this standard has been met and provides the relief requested.
6
    This case is the first case in the Vaccine Program for Mr. Kulwicki.

                                                        3
Servs., No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)
(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).

       Mr. Kulwicki falls within the 20 - 30 years’ experience range for his work
performed through the entirety of this case. Hourly rates within the 20 – 30 years of
experience in the vaccine program are as follows: $358 - $424 for work performed in
2017 and $370 - $439 for work performed in 2018. These rates are derived from the
OSM Attorneys’ Forum Hourly Rate Schedules 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, 2015 WL 5634323, at *19.

       Although Mr. Kulwicki is an experienced attorney, his experience in the Vaccine
Program is limited and does not support the higher end of the experience range. The
undersigned reduces Mr. Kulwicki’s hourly rates as follows: $358 per hour for work
performed in 2017 and $370.00 for work performed in 2018. The undersigned finds that
the proposed paralegal rate of $125 per hour reasonable. Therefore, attorneys’ fees
requested are reduced by $733.50.7

    IV.    Attorney Costs

        Petitioner requests compensation for attorney costs in the amount of $1,256.79.
These costs include medical records, filing fees and postal charges. The undersigned
finds the overall request for attorney costs reasonable and awards the request in full.

    V.     Form of the Award

       Due to petitioner’s failure to maintain communication with counsel, counsel
requests that the award of attorneys’ fees and costs be made directly payable to
counsel and not jointly with petitioner. ECF No. 32. Under the specific facts and
circumstances of this case, the undersigned is persuaded that petitioner’s counsel is
correct in asserting that he “has a reasonable expectation that petitioner will not
cooperate in negotiating a check made payable jointly . . .” Id.

      Awards of attorneys’ fees and costs are made payable jointly to petitioner and
counsel because they are considered an element of petitioner’s compensation.
However, where counsel cannot obtain the signature of petitioner through no fault of his
own:


7This amount is consists of ($400 - $358 = $42 x 11.75 hrs = $493.50) + ($400 - $370 = $430 x 8 =$240)
= $733.50.

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          Making a check out to counsel alone in these circumstances does not
          defeat the principle that the payment of attorneys’ fees and costs
          constitutes an element of petitioner’s compensation. The payment
          belongs to Petitioner, but he is not available to receive it. His agent, who
          represented him in these proceedings, is available. It seems a very
          modest accommodation to facilitate payment to petitioner in such a case
          by paying his agent, and it does not harm to the statutory scheme.

Gitestanti v. Sec’y Health & Human Servs. No. 09-799V, 2011 WL 5025006, at *7 (Fed.
Cl. Spec. Mstr. Sept. 30, 2011)(emphasis added); see also Tutza v. Sec’y Health &
Human Servs., No. 04-223V, 2012 WL 2362594 (Fed. Cl. Spec. Mstr. Apr. 20, 2012);
Turner v. Sec’y Health & Human Servs., No. 02-1437V, 2014 WL 1493119 (Fed. Cl.
Spec. Mstr. Mar. 26, 2014). Moreover, respondent has raised no objection.

    VI.       Conclusion

      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.

       Accordingly, the undersigned awards the total of $8,561.668 as a lump sum
in the form of a check payable to petitioner’s counsel, David A. Kulwicki.

          The clerk of the court shall enter judgment in accordance herewith.9

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




8This 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).

9 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.
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