              In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                       Filed: May 31, 2017

*************************                                          UNPUBLISHED
GERALD SATHER,             *
                           *                                       No. 16-1004V
               Petitioner, *
     v.                    *                                       Special Master Gowen
                           *
SECRETARY OF HEALTH        *                                       Attorneys’ Fees and Costs;
AND HUMAN SERVICES,        *                                       Petitioner’s Costs;
                           *                                       Special Master’s Discretion.
               Respondent. *
* * * * * * * * * * * * *

Howard S. Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.
Ann D. Martin, United States Department of Justice, Washington, DC, for respondent.

                          DECISION AWARDING FEES AND COSTS1

       On August 15, 2016, Gerald Sather (“petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq.2
[the “Vaccine Act” or “Program”]. Petitioner alleges that he suffered Guillain-Barré Syndrome
(“GBS”) as a result of an influenza (“flu”) vaccine administered on October 7, 2014. Petition at
1. On May 10, 2017, the undersigned issued a decision awarding compensation to petitioner
based on the parties’ stipulation. ECF No. 17.

        On May 16, 2017, petitioner filed a motion for attorneys’ fees and costs (Petitioner’s
Motion”). ECF No. 25. Petitioner requests attorneys’ fees in the amount of $14,073.50 and
costs in the amount of $1,696.59, for a total of $15,770.09. Id. Petitioner’s counsel represents
that petitioner has not incurred any personal litigation costs in pursuit of this claim. Id. at 1.


1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to
post this decision 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 delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that
provision, I will delete such material from public access.
2
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the
Vaccine Act are to 42 U.S.C.A. § 300aa.
        On May 24, 2017, respondent filed a response to Petitioner’s Motion (“Respondent’s
Response”). ECF No. 26. Respondent stated that he “does not object to the overall amount
sought, as it is not an unreasonable amount to have been incurred for proceedings in this case to
date.” Id. Respondent further explained that his “lack of objection to the amount sought in this
case should not be construed as admission, concession, or waiver as to the hourly rates requested,
the number of hours billed, or the other litigation related costs.” Id. This matter is now ripe for
review.

    I.         Reasonable Attorneys’ Fees and Costs

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42
U.S.C. § 300aa—15(e)(1). A petitioner need not prevail on entitlement to receive a fee award as
long as petitioner brought the claim in “good faith” and with a “reasonable basis” to proceed. Id.
In the present case, petitioner was awarded compensation pursuant to a stipulation agreement and
is therefore entitled to an award of reasonable attorneys’ fees and costs. Special Masters have
“wide discretion in determining the reasonableness” of attorneys’ fees and costs. See Perreira v.
Sec’y of Health and Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir.
1994); see also Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1519 (Fed. Cir. 1993)
(“Vaccine program special masters are also entitled to use their prior experience in reviewing fee
applications”).

           a. Attorneys’ Fees

         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, the 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. With regard to determining reasonable hourly rates, the undersigned recently conducted a
thorough analysis to determine appropriate hourly rates for work performed in the Program
during 2015. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). McCulloch has been endorsed by all current special
masters. The Office of Special Masters has issued a fee schedule which updates the McCulloch
rates, to account for inflation in subsequent years, which may be found on the court’s website.3

       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

3
 See Office of Special Masters – Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016 &
2017, available at http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (last
accessed May 30, 2017).
Fed. Cl. 313, 316–18 (2008). Counsel should not include in their fee request hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d 1517 at 1521 (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 his 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 petitioners with notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner's
fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 729 (Fed. Cl. 2011). Just as “[t]rial court 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 (citing Farrar v. Sec'y of Health & Human Servs., 1992
WL 336502 at * 2-3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)).

                  i.   Reasonable Hourly Rate

        Petitioner requests an hourly rate of $360.00 for work performed by Mr. Gold during
2015; $370.00 for work during 2016; and $380.00 for work during 2017. Petitioner’s Motion at
5-7. Petitioner requests a rate of $125.00 for work performed by a paralegal throughout the
entirety of the case. Id. These requested rates are within the ranges set forth in McCulloch and
the Office of Special Masters’ fee schedules for those years. Special Masters have previously
awarded these rates to Mr. Gold and his paralegal, after determining that they were reasonable.
Cooper v. Sec’y of Health & Human Servs., No. 15-471V, 2017 WL 1435880 (Fed. Cl. Spec.
Mstr. March 30, 2017); Coston v. Sec’y of Health & Human Servs., No. 16-05V, 2017 WL
1152465 (Fed. Cl. Spec. Mstr. Feb. 23, 2017). Accordingly, the undersigned finds that
petitioner’s requested rates are reasonable.

                 ii.   Hours Expended

        Petitioner requests compensation for 35.6 hours entered by Mr. Gold and 7.9 hours
entered by his paralegal. Petitioner’s Motion at 5-7. Petitioner submitted a billing log which
provides the date, increment of time, billing rate, and nature of each task performed. Id.
Petitioner also provided an affidavit from Mr. Gold which describes his relevant professional
experience and identifies the rates previously awarded to him and his paralegal. Based on a
thorough review of these materials and the lack of objection from respondent, the undersigned
finds that the hours expended are reasonable and the total of $14,073.50 in attorneys’ fees should
be awarded in full.

           b. Reasonable Costs

        Like attorneys’ fees, a request for reimbursement of 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 $1,696.59 in costs. Petitioner’s Motion at 8. The requested costs consist of the filing fee and
the costs for obtaining medical records. Id. Based on a review of the submitted expenses, the
undersigned finds that the requested costs are reasonable and should be awarded in full.
                                   II. Total Award Summary

        The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
undersigned has reviewed counsel’s time records and tasks performed, and finds them
reasonable. Petitioner’s counsel submitted receipts for his expenses, which the undersigned has
also reviewed and finds reasonable. Petitioner’s Motion 8-11.

       Based on the reasonableness of petitioner’s request and the lack of opposition from
respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs. The
undersigned awards fees and costs as follows:

       Attorneys’ Fees Awarded                                      $14,073.50

       Attorneys’ Costs Awarded                                      $1,696.59

       Total Attorneys’ Fees and Costs Awarded                      $15,770.09

       Accordingly, the undersigned awards attorneys’ fees and costs as follows:

    1) A lump sum in the amount of $15,770.094, representing reimbursement for
       attorneys’ fees and costs, in the form of a check payable jointly to petitioner, Gerald
       Sather, and his counsel, Howard S. Gold, Esq., which should be forwarded to:

       Gold Law Firm, LLC
       83 Walnut Street, Suite 150
       Wellesley Hills, MA 02481

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.5

       IT IS SO ORDERED.

                                                            s/Thomas L. Gowen
                                                            Thomas L. Gowen
                                                            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,” and 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 is expedited by the parties’ joint filing of
notice not to seek review.
