         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-1208V
                                    Filed: October 18, 2017
                                        UNPUBLISHED


    SONDRA RITCHIE-COPPLER,
                                                             Special Processing Unit (SPU);
                        Petitioner,                          Attorneys’ Fees and Costs
    v.

    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Leonard C. Herr, Jr., Herr, Pedersen & Berglund, LLP, Visalia, CA, 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 15, 2015, Sondra Ritchie-Coppler (“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 she suffered left
shoulder injuries, including rotator cuff tear and adhesive capsulitis, as a result of an
influenza (“flu”) vaccine she received on October 18, 2012. On February 9, 2017, the
undersigned issued a decision awarding compensation to petitioner based on the
parties’ joint stipulation. (ECF No. 39.)




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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
   I.     Procedural History

       On August 8, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 43.) Petitioner requests attorneys’ fees in the amount of $20,208.19, and
attorneys’ costs in the amount of $37.44. (Id. at 2.) Additionally, in compliance with
General Order #9, petitioner filed a signed statement indicating that she incurred
$900.00, in out-of-pocket expenses. Thus, the total amount requested is $21,145.63.

        On August 9, 2017, respondent filed a response to petitioner’s motion. (ECF No.
44.) 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.

   II.    Discussion

       Under the Vaccine Act, the special master shall award reasonable attorney’s 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 attorney’s fees and costs.

          a. Reasonable Attorney’s Fees

        The Federal Circuit has approved use of the lodestar approach to determine
reasonable attorney’s 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 attorney’s 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. 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
                                            2
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
engaged 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).

                  i. Non-Compensable Entries

       The undersigned has reviewed the billing records submitted with petitioner’s fee
application. Certain items billed by petitioner are generally not compensated in the
Vaccine Program. For example, time spent learning the Vaccine Program and
applicable law is not compensable. See, e.g. Matthews v. Sec'y of Health & Human
Servs., No. 14–1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016);
Calise v. Sec’y of Health & Human Servs., No. 08–865V, 2011 WL 2444810, at *5 (Fed.
Cl. Spec. Mstr. June 13, 2011) (reducing petitioner's counsel's billings for “research into
the elementary principles of vaccine litigation,” noting, “basic education [is] not
compensable under the Program.”); Carter v. Sec’y of Health and Human Servs., No.
04-1500, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007)(“an
inexperienced attorney may not ethically bill his client to learn about an area of the law
in which he is unfamiliar. If an attorney may not bill his client for this task, the attorney
may also not bill the Program for this task.”).

       Likewise, neither is time related to seeking admission to the U.S. Court of
Federal Claims compensable. See, e.g. Oswalt v. Sec'y of Health & Human Servs., No.
03–2153, 2011 WL 2149932 (Fed. Cl. Spec. Mstr. May 2, 2011)(denying fees for time
spent preparing application for admission to the bar of the U.S. Court of Federal
Claims); Ceballos v. Sec'y of Health & Human Servs., No. 99–97V, 2004 WL 784910
(Fed. Cl. Spec. Mstr. Mar. 25, 2004) (the admission fee for the U.S. Court of Federal
Claims bar is not recoverable); Velting v. Sec'y of Health & Human Servs., No. 90–
1432V, 1996 WL 937626 (Fed. Cl. Spec. Mstr. Sept. 24, 1996)(denying compensation
for hours spent obtaining admission to the bar, even where admission was sought
specifically for that case and counsel was unlikely to again utilize the admission). Ms.
Curtiss billed 0.25 hours ($27.50) on September 30, 2015 for time researching the
California Supreme Court website and for instructions to obtain a certificate of standing.
She also billed 1.65 hours ($181.50) on October 7, 2015 to “[r]esearch Court of Claims
Rules of Court; research requirements for court admission…” These items will not be
compensated. This results in a deduction of $209.00.

                 ii. Hourly Rates

                         1. Leonard Herr

        Petitioner requests compensation for her attorney, Mr. Herr, at a rate of $225 per
hour for time billed from 2015-2017. Mr. Herr has been a licensed attorney in the State
of California since 1978. He has an extensive civil practice at the trial and appellate
level in state and federal courts throughout California. He has also served on the Board
                                              3
of Governors of the State Bar of California as well as a number of State Bar Committees
and organizations. See Affidavit of Leonard Herr at 1-3. (ECF No. 43-2, Exhibit 1).
The undersigned finds Mr. Herr’s requested rate to be reasonable.

                         2. Caren L. Curtiss

       Petitioner requests compensation for her attorney, Caren L. Curtiss, at a rate of
$175 per hour. Ms. Curtiss was admitted to the State Bar of California in November
2016. Prior to becoming an attorney and over the course of the last 20 years, Ms.
Curtiss was employed by the law firm of Herr Pedersen & Berglund in the capacity of an
American Bar Association Certified Paralegal focusing primarily on civil litigation. See
Affidavit of Caren L. Curtiss at 1-2. (ECF No. 43-2, Exhibit 2). The undersigned finds
Ms. Curtiss’s requested rate to be reasonable.

                         3. Paralegals

      Petitioner requests compensation for the timed billed by the paralegals in this
case. Paralegals at the law firm of Herr Pedersen & Berglund bill between $100-$110
per hour depending on the experience and certifications held by the paralegal. The
undersigned the paralegal rates to be reasonable.

       The undersigned finds all of the rates requested by the attorneys and paralegals
to be reasonable and will award them herein.

                  i.   Reduction of Billable Hours

         Special masters have the authority to award “reasonable” attorney’s fees and
litigation costs in Vaccine Act cases. §300aa–15(e)(1). This is true even when a
petitioner is unsuccessful on the merits of the case, if the petition was filed in good faith
and with a reasonable basis. Id. “The determination of the amount of reasonable
attorney’s fees is within the special master's discretion.” Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993); see also Shaw v. Sec’y of Health &
Human Servs., 609 F.3d 1372, 1377 (Fed. Cir. 2010).

       Further, as to all aspects of a claim for attorney’s fees and costs, the burden is
on the petitioner to demonstrate that the attorney's fees claimed are “reasonable.”
Sabella v. Sec’y of Health & Humans Servs., 86 Fed. Cl. 201, 215 (2009); Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); Rupert v. Sec’y of Health & Human Servs., 52
Fed. Cl. 684, 686 (2002); Wilcox v. Sec’y of Health & Human Servs., No. 90–991V,
1997 WL 101572, at *4 (Fed. Cl. Spec. Mstr. Feb. 14, 1997). The petitioner's burden of
proof to demonstrate “reasonableness” applies equally to costs as well as attorney’s
fees. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33
F.3d 1375 (Fed. Cir. 1994).


                                              4
        One test of the “reasonableness” of a fee or cost item is whether a hypothetical
petitioner, who had to use his own resources to pay his attorney for Vaccine Act
representation, would be willing to pay for such expenditure. Riggins v. Sec’y of Health
& Human Servs., No. 99–382V, 2009 WL 3319818, at *3 (Fed. Cl. Spec. Mstr. June 15,
2009), aff'd by unpublished order (Fed. Cl. Dec. 10, 2009), aff’d, 406 Fed. App’x. 479
(Fed. Cir. 2011); Sabella v. Sec’y of Health & Human Servs., No. 02–1627V, 2008 WL
4426040, at *28 (Fed. Cl. Spec. Mstr. Aug. 29, 2008), aff'd in part and rev'd in part, 86
Fed. Cl. 201 (2009). In this regard, the United States Court of Appeals for the Federal
Circuit has noted that:

       [i]n the private sector, ‘billing judgment’ is an important component in fee
       setting. It is no less important here. Hours that are not properly billed to
       one's client also are not properly billed to one's adversary pursuant to
       statutory authority.

Saxton, 3 F.3d at 1521 (emphasis in original) (quoting Hensley, 461 U.S. at 433–34).
Therefore in assessing the number of hours reasonably expended by an attorney, the
court must exclude those “hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.” Hensley, 461 U.S. at 434; see also Riggins, 2009 WL
3319818, at *4.

        The Federal Circuit has also made clear that special masters may rely on their
prior experience in making reasonable fee determinations, without conducting a line-by-
line analysis of the fee bill, and are not required to rely on specific objections raised by
respondent. See Saxton, 3 F.3d at 1521; Sabella, 86 Fed. Cl. 201, 209 (2009); see also
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484, 486 (1991), aff’d, 988
F.2d 131 (Fed. Cir. 1993) (holding that, in determining a reasonable number of hours
expended in any given case, a special master may rely on her experience with the
Vaccine Act and its attorneys, without basing her decision on a line-by-line examination
of the fee application). A unanimous Supreme Court has articulated a similar holding:

       We emphasize, as we have before, that the determination of fees “should not
       result in a second major litigation.” The fee applicant (whether a plaintiff or a
       defendant) must, of course, submit appropriate documentation to meet “the
       burden of establishing entitlement to an award.” But trial courts need not, and
       indeed should not, become green-eyeshade accountants. The essential goal in
       shifting fees (to either party) is to do rough justice, not to achieve auditing
       perfection. So trial courts may take into account their overall sense of a suit, and
       may use estimates in calculating and allocating an attorney’s time. And appellate
       courts must give substantial deference to these determinations, in light of “the
       district court’s superior understanding of the litigation.” We can hardly think of a
       sphere of judicial decisionmaking in which appellate micromanagement has less
       to recommend it. Fox v. Vice, 563 U.S. 826, 838 (2011) (internal citations
       omitted).
                                                5
        The undersigned finds that petitioner’s award should be reduced for excessive
billing. The Vaccine Act provides broad discretion to special masters in determining a
reasonable amount of fees and costs. See § 15(e)(1). While petitioner is entitled to an
award of attorney’s fees, the undersigned finds that the total number of hours billed by
Mr. Herr, Ms. Curtiss and the paralegals to be excessive. For example, upon review of
all the records in this case, a total of 232 pages of petitioner’s medical records were
filed. It appears that more than 37 hours were billed to review the 232 pages of
records.3 These hours do not include the hours billed to draft the petition, affidavits,
conduct legal research, interoffice meetings or conferences with the client. In the
undersigned’s experience adjudicating similar types of SIRVA (shoulder injury related to
vaccine administration) claims and reviewing the associated billing records of such
SIRVA claims, the hours billed in this case are significantly higher. Therefore, a
reduction is appropriate. The undersigned will reduce the overall amount billed by 10
percent, a reduction of $2,020.81.

    III.     Conclusion

      The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request and the adjustments
made in this decision, the undersigned GRANTS petitioner’s motion for attorneys’ fees
and costs as follows:

Requested attorneys’ fees:                                                                     $20,208.19
Less reduction of non-compensable hours:                                               -       $ 209.00
Less 10% overall reduction:                                                            -       $ 2,020.81

Attorneys’ Costs:                                                                               $      34.00

Total Attorneys’ Fees and Costs Awarded:                                                        $18,012.38




3
  Because of block billing, it is difficult to parse out the exact time spent reviewing medical records.
However, the undersigned finds that a reduction is necessary. Block billing, or billing large amounts of
time without sufficient detail as to what tasks were performed, is clearly disfavored. Broekelschen v.
Sec'y of Health & Human Servs., No. 07-137V, 2008 WL 5456319 at **4–5 (Fed. Cl. Spec. Mstr. Dec. 17,
2008) (reducing petitioner's attorneys' fees and criticizing her for block billing); see also Jeffries v. Sec'y of
Health & Human Servs., 2006 WL 3903710, at *8 (Fed Cl. Spec. Mstr. Dec. 15, 2006); Plott v. Sec'y of
Health & Human Servs., 1997 WL 842543, at *fn. 2, 4 (Fed. Cl. Spec. Mstr. April 23, 1997). Indeed, the
Vaccine Program's Guidelines for Practice state, “Each task should have its own line entry indicating the
amount of time spent on that task. Several tasks lumped together with one time entry frustrates the
court's ability to assess the reasonableness of the request.

                                                        6
        Accordingly, the undersigned awards the total of $18,912.38,4 as follows:

                A lump sum of $18,012.38, representing reimbursement for
                 attorneys’ fees and costs, in the form of a check payable jointly to
                 petitioner and petitioner’s counsel, Herr, Pedersen & Berglund, LLP;
                 and

                A lump sum of $900.00, 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.5

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




4
  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).
5
  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.
                                                     7
