    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                    Filed: February 21, 2020

* * * * * * * * * * * * * *                                UNPUBLISHED
SIMON OLSCHANSKY,          *
                           *
     Petitioner,           *                               No. 17-1096V
                           *                               Special Master Oler
v.                         *
                           *                               Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Heather L. Pearlman, United States Department of Justice, Washington, DC, for Respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

        On August 15, 2017, Simon Olschansky (“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 he suffered vitiligo as a result of the HPV (Gardasil) vaccinations
he received on June 16, 2014, and January 2, 2015. See Petition, ECF No. 1. On October 18, 2019,
the parties filed a stipulation, which the undersigned adopted as her Decision awarding
compensation on October 21, 2019. Decision, ECF No. 38.

       On October 22, 2019, Petitioner filed an application for final attorneys’ fees and costs. ECF
No. 39 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$32,071.20, representing $27,961.50 in attorneys’ fees and $4,109.70 in attorneys’ costs. Fees
App. at 1. Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs

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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
related to this litigation. Fees App. at 3. Respondent responded to the motion on October 22, 2019,
stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and
costs are met in this case” and requesting that the undersigned “exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 41.
Petitioner did not file a reply thereafter.

       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, because Petitioner was awarded compensation, he is
entitled to a final award of reasonable attorneys’ fees and costs.

        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

       The undersigned has reviewed the rates requested for the work of petitioner’s counsel, Mr.
Andrew Downing and Ms. Courtney Van Cott, and finds the rates sought herein to be reasonable
and consistent with what these individuals have previously been awarded. See, e.g., Butler v. Sec'y
of Health & Human Servs., No. 16-1027V, 2019 WL 1716073, at *2 (Fed. Cl. Spec. Mstr. Mar.
20, 2019); Carey on behalf of C.C. v. Sec'y of Health & Human Servs., No. 16-828V, 2018 WL
1559805, at *6 (Fed. Cl. Spec. Mstr. Feb. 26, 2018); Bales on behalf of J.B.A. v. Sec'y of Health
& Human Servs., No. 15-882V, 2017 WL 2243094, at *3-4 (Fed. Cl. Spec. Mstr. Apr. 26, 2017).
Accordingly, no adjustment to the rates is necessary.

       b. Reasonable Hours Expended




                                                  2
         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).

        Upon review, the undersigned finds the overall hours billed to be largely reasonable, with
only a small reduction necessary for excessive time billed by paralegals. This is not the first time
Mr. Downing has been warned about this issue. See Goff v. Sec'y of Health & Human Servs., No.
17-259V, 2019 WL 3409976, at *4 (Fed. Cl. Spec. Mstr. Mar. 29, 2019); Sheridan v. Sec'y of
Health & Human Servs., No. 17-669V, 2019 WL 948371, at *3 (Fed. Cl. Spec. Mstr. Jan. 31,
2019); Moran v. Sec'y of Health & Human Servs., No. 16-538V, 2019 WL 1556701, at *4 (Fed.
Cl. Spec. Mstr. Jan. 23, 2019). The undersigned will therefore reduce the award of attorneys’ costs
by $810.00, representing approximately 6 hours of paralegal time the undersigned has identified
as excessive. Petitioner is therefore awarded $27,151.50 in final attorneys’ fees.

       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 $4,109.70 in attorneys’ costs. Fees App. at 1. This amount is comprised of acquiring
medical records, the Court’s filing fee, postage, and an expert report prepared by Dr. John Harris.
All of these costs are typical of Vaccine Program litigation and are reasonable in the undersigned’s
experience and Petitioner has provided adequate documentation supporting the request.
Accordingly, the requested attorneys’ costs are reasonable and shall be reimbursed 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 his counsel as follows:

 Attorneys’ Fees Requested                                           $27,961.50
 (Reduction to Fees)                                                 - ($810.00)
 Total Attorneys’ Fees Awarded                                       $27,151.50

 Attorneys’ Costs Requested                                           $4,109.70
 (Reduction to Costs)                                                     -
 Total Attorneys’ Costs Awarded                                       $4,109.70

 Total Amount Awarded                                                $31,261.20

       Accordingly, the undersigned awards the following:

                                                 3
    1) a lump sum in the amount of $31,261.20, 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. Andrew Downing.

        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).

                                                    4
