        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-0404V
                                      Filed: July 29, 2016
                                          Unpublished
*********************************
DVORA GHITZA,                                     *
                                                  *
                         Petitioner,              *
                v.                                *
                                                  *       Attorneys’ Fees and Costs;
SECRETARY OF HEALTH                               *       Special Processing Unit (“SPU”)
AND HUMAN SERVICES,                               *
                                                  *
                         Respondent.              *
                                                  *
****************************
Ronald Craig Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

       On April 22, 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 alleged that she suffered a neurological injury as a result of a tetanus
diphtheria [“Td”] vaccination on May 17, 2012. (ECF No. 1 at 1). On July 14, 2015, a
ruling on entitlement was issued, finding petitioner entitled to compensation for the
Vaccine Table Injury of brachial neuritis. (ECF No. 14 at 1-2). On January 6, 2016, a
decision was issued awarding compensation to petitioner based on respondent’s
proffer. (ECF No. 25).


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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
       On May 19, 2016, petitioner filed an application for attorneys’ fees and costs.
(ECF No. 29). Petitioner requests attorneys’ fees in the amount of $19,264.00,
attorneys’ costs in the amount of $659.12, and petitioner’s out-of-pocket costs in the
amount of $400.00,3 for a total amount of $20,323.12. Id. at 1.

        On May 25, 2016, respondent filed a response to petitioner’s application. (ECF
No. 31). 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 she “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Additionally, she “asserts that a reasonable amount for fees and
costs in the present case would fall between $13,000.00 and $15,000.00,” citing five
“similarly-postured” SIRVA cases where the stipulated award of attorneys’ fees and
costs fell within the given range. Id. at 3-4.

        On June 6, 2016, petitioner filed a reply. (ECF No. 32). Petitioner argues that
respondent has “selectively” cited stipulated attorneys’ fees and costs awards in past
cases “attempt[ing] to create a self-serving range that is in fact not representative of fee
awards in many SIRVA cases.” Id. at 4-5. Petitioner asserts that “respondent’s range
for fees and costs is clearly intended to suggest a ‘cap’ on attorneys’ fees and costs”
and “provides no helpful or substantive information” for the undersigned to use in
making her determination. Id. at 5. Petitioner further argues that respondent has
provided “no specific objections to petitioners’ application for attorneys’ fees and costs”
and instead offers only a “‘blanket’ objection based upon a vague and unhelpful survey.”
Id. at 8.

        Respondent filed a sur-reply to petitioner’s application on June 15, 2016. (ECF
No. 34). Respondent asserts that the decision in McCulloch4 awarded rates to
petitioner’s counsel “that are contrary to the evidence respondent presented in that
case” and respondent cannot “agree to a fee award based on hourly rates that
respondent believes lack evidentiary support.” Id. at 2. Respondent further states that
she has “made the very practical decision to stop providing detailed objections to fee
applications, based on the recognition that it was counterproductive and not achieving
the purpose for which it was intended.” Id. at 4. Respondent argues in favor of her
“approach of providing ranges [for attorneys’ fees and costs awards] based on the
nature and scope of the litigation at issue” and notes that the proposed range in the
instant claim provides for $1000.00 in costs, 20-25 hours of attorney time at “$400.00
per hour and 32 hours of paralegal time at $125.00 an hour.” Id. at 5-6. Respondent

3
  In compliance with General Order #9, petitioner filed a signed statement indicating she incurred $400.00
in out-of-pocket expenses. (ECF No. 30).
4
 McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr.
Sept. 1, 2015)


                                                    2
asserts this “is a generous number of hours for resolving a straight-forward, conceded
brachial neuritis case . . . where judgement entered less than nine months after the
petition was filed.” Id.

       Petitioner filed a sur-reply to respondent’s sur-reply on June 22, 2016 addressing
the arguments raised by respondent in her sur-reply. (ECF No. 36).

      The undersigned notes that while she has only summarized the arguments
presented by the parties in their briefing, the undersigned has fully reviewed and
considered both parties’ briefs.

        The undersigned fully agrees with the McCulloch analysis regarding appropriate
hourly rates for the attorneys in the Conway, Homer, and Chin-Caplan law firm and
adopts the same reasoning in this case. Furthermore, the undersigned has reviewed
the billing records submitted with petitioner’s request. In the undersigned’s experience,
the request appears reasonable, and the undersigned finds no cause to reduce the
requested hours or rates.

      Petitioner requests supplemental attorneys’ fees in the amount of $1,711.50 for
preparing the reply brief. (ECF. No. 33). The undersigned notes petitioner requested
no supplemental attorneys’ fees for preparing her sur-reply. The undersigned has
reviewed the submitted billing records and finds the request for additional fees to be
reasonable; the full amount requested, $1,711.50, is awarded.5 Thus, the total amount
awarded for attorneys’ fees and costs is $22,034.62.

       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 petitioner’s application and supplemental application for attorneys’ fees and
costs.

        Accordingly, the undersigned awards the total of $22,034.626 as follows:



5
  The undersigned notes that portions of petitioner’s reply are similar to a reply filed in another claim by
petitioner’s counsel that was before the undersigned. However, as portions of the reply are unique from
the other claim, and petitioner has not billed for her attorneys’ work on petitioner’s sur-reply, petitioner’s
request for attorneys’ fees for her work on the reply is not reduced. However, the undersigned may
reduce the attorneys’ fees sought for additional filings of a similar reply in other cases.
6
 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).


                                                      3
        (1) A lump sum of $21,634.62, representing reimbursement for attorneys’
            fees and costs, in the form of a check payable jointly to petitioner and
            petitioner’s counsel, Conway, Homer & Chin-Caplan, P.C.; and

        (2) A lump sum of $400.00, representing reimbursement for petitioner’s
            costs, in the form of a check payable to petitioner, Dvora Ghitza.

        The clerk of the court shall enter judgment in accordance herewith.7

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




7
  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.

                                                     4
