         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-0854V
                                    Filed: October 19, 2018
                                        UNPUBLISHED


    LESLIE DOBBINS,

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

                       Respondent.


Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

       On July 20, 2016, 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 from a right shoulder injury as a result of
receiving a tetanus-diphtheria-acellular pertussis (“Tdap”) vaccination on September 21,
2015. Petition at 1. On August 15, 2018, the undersigned issued a decision awarding
compensation to petitioner in the amount of $128,143.80. (ECF No. 54).

      On September 26, 2018, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 58). Petitioner requests attorneys’ fees in the amount of $27,170.40 and

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the
action in this case, 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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
attorneys’ costs in the amount of $3,292.15. Id. at 2. In accordance with General Order
#9, petitioner's counsel represents that petitioner incurred no out-of-pocket expenses.
Id. at 2. Thus, the total amount requested is $30,462.55.

        On October 5, 2018, respondent filed a response to petitioner’s motion. (ECF
No. 59.) 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

       The Federal Circuit endorses the lodestar approach to determine reasonable
attorneys’ fees and costs. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343,
1349 (Fed. Cir. 2008). Under the lodestar approach, a court makes “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 1347-48 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). After this initial calculation, the court “may then
make an upward or downward departure to the fee award based on other specific
findings.” Id. at 1348.

        The reasonableness standard applies both to attorneys’ fees and costs. Savin v.
Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 315 (2008). The application must
provide sufficient detail and explanation of the time billed so that a special master may
adjudge the reasonableness of the amount requested. 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, at *8 (Fed. Cl. Spec. Mstr. July 27, 2009). It is the
petitioner who bears the burden of adequately documenting the fees and costs.
Rodriguez, 2009 WL 2568468, at *8.

       Special masters need not conduct a line-by-line evaluation of a petitioner’s fee
application to determine a reasonable number of hours expended. Wasson v. Sec’y of
Health & Human Sevs., 24 Cl.Ct. 482, 484, aff’d in relevant part, 988 F.2d 131 (Fed. Cir.
1993); Nelson v. Sec’y of Health & Human Servs., No. 14-70V, 2015 WL 9302973 at *2
(Fed. Cl. Spec. Mstr. Nov. 30, 2015) (“It is within the special master’s discretion to
reduce the number of hours by a percentage of the amount charged, rather than making
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a line-by-line determination regarding the reasonableness of the charges”). Special
masters have discretion to discern whether any of the requested hours are “excessive,
redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3
F.3d 1517, 1521 (Fed. Cir. 1993) (internal quotations and citations omitted). In
contemplating reductions, special masters have the latitude to “consider their prior
experience in reviewing fee applications and even dealings with the specific attorney
involved.” Savin, 85 Fed. Cl. at 315. It is further within the purview of special masters
to reduce a fee request sua sponte, apart from or in the absence of respondent’s
objections, and without providing petitioner notice or opportunity to respond. Sabella v.
Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009); Estate of Bondi by
Shoemaker v. Sec’y of Health & Human Servs., No. 12-476V, 2017 WL 1046526 at *2
(Fed. Cl. Spec. Mstr. Feb. 23, 2017).

          II.     Discussion

                  A. Travel Time

        In the Vaccine Program, special masters traditionally have compensated time
spent traveling when no other work was being performed at one-half an attorney’s
hourly rate. See Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL
3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health &
Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27,
2009); English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at
*12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use
this rule as standard practice but rather “[e]ach case should be assessed on its own
merits.” Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). “Even
an automatic 50% award may be too high for an undocumented claim, given the
possibility that an attorney may use the travel time to work on another matter or not to
work at all while traveling.” Id. Attorney Shealene Wasserman billed 4.5 hours of travel
time at the rate of $233 per hour and 0.90 hours at the rate of $225 per hour for a total
of 5.4 hours. ECF No. 58 at 7. At a 50% reduction, the rate for travel would be $116.50
and $112.50 consecutively. Therefore, the request for attorney fees is reduced by
$625.50.3

                  B. Administrative Time

       It is firmly established that billing for clerical and other secretarial work is not
permitted in the Vaccine Program. Rochester v. United States, 18 Cl.Ct. 379, 387
(1989) (denied an award of fees for time billed by a secretary and found that “[these]
services … should be considered as normal overhead office costs included within the
attorneys’ fees rates”); Mostovoy v. Sec’y of Health & Human Servs., 2016 WL 720969,


3
    This amount consists of ($116.5 x 4.5 = $524.50) + ($112.5 x 0.90 = $101.25) = $625.50.

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*5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). A total of 3.4 hours of time4 was billed on tasks
that are considered administrative, including opening new files, reviewing filing receipts
and processing invoices. The undersigned reduces the request for attorney’s fees
by, $465.005, the total amount of the administrative entries.

                C. Excessive and Duplicative Billing

        The undersigned has previously reduced the fees paid to petitioners due to
excessive and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No.
10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee
award by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health
& Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691
(2016). The undersigned and other special masters have previously noted the
inefficiency that results when cases are staffed by multiple individuals and have reduced
fees accordingly. See Sabella, 86 Fed. Cl. at 209.

        Billing records show that 3 attorneys and 3 paralegals worked on this case. This
resulted in multiple reviews and file updates for the same documents filed in the case.
For example, Mr. Brazil and paralegals list 14 separate entries to review the same court
notifications of filings.6 The undersigned reduces the request for attorney fees in the
amount of $192.50, the total amount of the duplicated entries.

        III.    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.




4 Examples of entries that are considered administrative include: November 17, 2015 (0.80 hrs) “Open
new client file”, March 15, 2017 (0.10 hrs) “Review confirmation of filing status report”, March 19, 2018
(0.30 hrs) “Review and process invoice – ACAOM, and June 21, 2018 (0.30 hrs) “Review and process –
invoice – For the Record.” ECF No. 58 at 6-8.

5This amount consists of 0.10 hours at the rate of $300 per hour, 3 hours at $125 per hour and 0.40
hours at $150 per hour.

6Examples of these entries include: March 16, 2017, Attorney Paul Brazil billed 0.2 and paralegal Maria
Loecker billed 0.1 to review the scheduling order at ECF No. 17, June 23, 2017, Attorney Paul Brazil
billed 0.1 (and 0.1 on June 22, 2017) and paralegal Maria Loecker billed 0.1 billed to review the
scheduling order at ECF No. 24, and September 20, 2018 Attorney Paul Brazil billed 0.2 and paralegal
Michelle Coles billed 0.1 to review the judgment at ECF No. 55. These entries are merely examples and
are not exhaustive.
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      Accordingly, the undersigned awards the total of $29,179.557 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Paul R. Brazil.

        The clerk of the court shall enter judgment in accordance herewith.8

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




7This 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).

8 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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