         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1463V
                                     Filed: March 23, 2018
                                         UNPUBLISHED


    MARILYN WENKER,

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

                       Respondent.


Barry Alan Washor, Queller, Fisher, Washor, Fuchs & Kool, LLP, New York, NY, for
petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

       On December 3, 2015, 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 caused by her
September 13, 2013 influenza vaccination. Petition at 1. On April 13, 2017, the
undersigned issued a decision awarding compensation to petitioner based on the
parties’ stipulation. (ECF No. 41).

       On February 28, 2018, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 46). Petitioner requests attorneys’ fees in the amount of $18,456.00 and
attorneys’ costs in the amount of $839.53. (Id. at 3). In compliance with General Order

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
#9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. (Id at 3). Thus, the total amount requested is $19,295.53.

        On March 8, 2018, respondent filed a response to petitioner’s motion. (ECF No.
47). 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 for Awarding Attorneys’ Fees and Costs

       Under the Vaccine Act, the special master shall award reasonable attorneys’ fees
and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-
15(e)(1). Petitioner in this case was awarded compensation; she is therefore entitled to
an award of reasonable attorneys’ fees and costs. 3

        The Federal Circuit has approved use of the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a
court first determines “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 1347–58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the
court may make an upward or downward departure from the initial calculation of the fee
award based on other specific findings. (Id. at 1348.)

         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. Cl. 1993) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s
3 In addition, § 300aa–15(e)(3) states that “[n]o attorney may charge any fee for services in connection
with a petition filed under section 300aa–11 of this title which is in addition to any amount awarded as
compensation by the special master or court under paragraph (1).” This would include any amounts
requested by counsel that the undersigned finds non-compensable.
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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).

         An application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file,
whether the amount requested is reasonable. 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 (Fed. Cl. Spec. Mstr. July 27, 2009). Petitioners bear the burden of
documenting the fees and costs claimed. Rodriguez, 2009 WL 2568468, at *8. Block
billing, or billing large amounts of time without sufficient detail as to what tasks were
performed, is clearly disfavored. See, e.g., Broekelschen v. Sec’y of Health & Human
Servs., No. 07-137V, 2008 WL 5456319, at *4-5 (Fed. Cl. Spec. Mstr. Dec. 17, 2008).

        In determining a reasonable number of hours expended, a line-by-line evaluation
of the fee application is not required. Wasson v. Sec’y of Health & Human Servs., 24
Cl.Ct. 482, 484, aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters
may rely on their experience with the Vaccine Act and its attorneys to determine the
reasonable number of hours expended. Id. Just as “[t]rial courts routinely use their
prior experience to reduce hourly rates and the number of hours claimed in attorney fee
requests .... [v]accine program special masters are also entitled to use their prior
experience in reviewing fee applications.” Saxton, 3 F.3d at 1521.

    II.      Appropriate Hourly Rates

          Petitioner requests compensation for Mr. Washor at the following rates;

             •   Work performed in 2013 - $385 per hour
             •   Work performed in 2014 - $396 per hour
             •   Work performed in 2015 - $413 per hour
             •   Work performed in 2016 - $425 per hour
             •   Work performed in 2017 - $435 per hour
             •   Work performed in 2018 - $435 per hour

Due in large part to Mr. Washor’s inexperience in the Vaccine Program 4, the
undersigned does find cause to reduce the hourly rates to the following: $385 an hour
for time billed in 2013 – 2014; $398 per hour for time billed in 2015 -2016 and $415 per

4
 Mr. Washor’s inexperience with the Vaccine Program is readily observed upon review of his billing
records. Examples include entries at 11/14/13 (0.30 hours) “Researched covered vaccines and Vaccine
Act”; 04/21/15 (4.0 hours) “Memo summarizing vaccine guidelines, rules, and USCFC.” (ECF No. 46-3 at
2); 02/23/16 (0.2 hours) “Phone call/emails with respondent re: pacer tech support.” (Id at 4).

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hour for time billed in 2017 – 2018. 5 The undersigned finds that the proposed paralegal
rates of $120 - $145 per hour reasonable. Therefore, attorneys’ fees requested are
reduced by $972.05.

    III.    Reasonable Hours

        The undersigned also finds Mr. Washor billed 1.1 hours of time and his paralegal
billed 0.3 hours of time spent on tasks which are not reimbursable. These tasks include
time spent obtaining bar membership with the U.S. Court of Federal Claims and a
CM/ECF account which are not tasks related solely or exclusively to petitioner’s case. 6
See Velting v. Sec’y of Health & Human Servs., No. 90-1432, 1996 WL 937626, at *2
(Fed. Cl. Spec. Mstr. Sept. 24, 1996). The undersigned reduces the fee request by
$475.30. 7

    IV.     Reasonable Costs

       The undersigned has also reviewed the costs submitted with petitioner’s request
and finds a reduction in the amount of costs to be awarded appropriate. Mr. Washor
seeks reimbursement of $286.00 in costs associated with his admission to the U.S.
Court of Federal Claims, which is non-compensable as discussed above. (ECF 46-3 at
7). See Velting, 1996 WL 937626, at *2, 4. The undersigned reduces the cost request
by $286.00.

    V.      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 reduced attorneys’ fees and costs.


5
 These rates are derived from the undersigned’s application of the OSM Attorneys’ Forum Hourly Rate
Schedules for 2015-2018 is 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) (noting that vaccine attorneys with over 20 years
of experience should receive between $350 and $415 per hour, and further noting that higher rates
should be reserved for attorneys with significant vaccine experience). Accord Johnson v. Sec’y Health &
Human Servs., No. 15-602V, 2017 WL 4210578 (Fed. Cl. Spec. Mstr. June 26, 2017) (reducing an
attorney barred in 1972 from a requested rate of $415 per hour to $385 per hour for work performed in
2016 due to lack of prior vaccine experience).
6
 These tasks include: 08/02/15 (0.2 hours) “Telephone conference with 2 members of Bar re:
statements.” (ECF No. 46-3 at 3); 10/21/15 (0.2 hours) “Online registration CM-ECF.” (Id.); 12/11/15 (0.1
hours) “Meeting with HS re:submitting certificate.” (Id).
7
 This total represents 1.1 hours of time billed at the already reduced rate of $385 per hour and 0.3 hours
billed at the rate of $125 per hour for a total reduction of $475.30. (1.1 * $385 + 0.3 * $125 = $475.30)

                                                    4
      Accordingly, the undersigned awards the total of $17,562.18 8 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Barry Alan Washor.

        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




8 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).

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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