    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                     Filed: June 25, 2019

* * * * * * * * * * * * *  *
GAYLE FOSHEE-NAUGHTON,     *                               No. 17-1366V
                           *                               Special Master Sanders
     Petitioner,           *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                               Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA for Petitioner.
Sarah C. Duncan, United States Department of Justice, Washington, D.C., for Respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS1

        On September 28, 2017, Gayle Foshee-Naughton (“petitioner”) filed a petition for
compensation pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§
300aa-10 to 34 (2012). The petition alleged that the pneumococcal conjugate vaccine (“PCV13”)
petitioner received on December 5, 2016, caused her to suffer from a Shoulder Injury Related to
Vaccine Administration (“SIRVA”). On February 22, 2019, the parties filed a stipulation for
award, which the undersigned adopted as her Decision awarding damages on February 25, 2019.
ECF No. 32.

        On March 22, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.

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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
37 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $8,018.38
(representing $7,623.40 in fees and $394.98 in costs). Fees App. at 2. Pursuant to General Order
No. 9, Petitioner warrants that she has not incurred any costs related to the prosecution of her
petition. Id. Respondent responded to the motion on April 3, 2019, indicating that he “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. 38). Petitioner did not file a reply
thereafter.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

         The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved 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, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . 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)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings. Id. at 1348.

        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). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. 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. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.

        Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to


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reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.

          a. Hourly Rates

        The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3

         Petitioner requests that her counsel, Mr. Paul Brazil, be compensated at $300.00 per hour
for work performed in 2017 and $317.00 per hour for work performed in 2018-2019. Fees App. at
1. Petitioner also requests that various paralegals who performed work on this case be compensated
at $125.00 to $150.00 per hour, depending on the year the work was performed in and the
paralegal. Id. The rates petitioner is requesting for Mr. Brazil are consistent with what he has
previously been awarded for his work in the Vaccine Program. See Prestia v. Sec’y of Health &
Human Servs., No. 17-13V, 2019 WL 2158835, at *2-3 (Fed. Cl. Spec. Mstr. Apr. 25, 2019).
However, $150.00 per hour for paralegal work in 2018 exceeds what Muller Brazil LLP paralegals
have previously been awarded, and the undersigned will compensate that work at $125.00 per
hour. See Silver v. Sec’y of Health & Human Servs., No.17-1204V, 2019 WL 2158875, at *2 (Fed.
Cl. Spec. Mstr. Apr. 30, 2019). This results in a reduction of $120.00.4

          b. Hours Expended

         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.

       Upon review, the undersigned finds the billed hours (40.1) to be mostly reasonable.
However, a reduction to paralegal hours billed must be made due to several instances in which
paralegals overbilled for filing documents and for reviewing CMECF generated notices of filings
just made by petitioner. See generally Fees App. (billing entries on 1/18/18, 1/19/18, 3/6/18,

3
 The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, 2015 WL 5634323.
4
    4.8 paralegal hours billed in 2018 at $150.00 * $25.00 reduction = $120.00.

                                                      3
7/20/18, 8/17/18. Accordingly, the undersigned will reduce the paralegal hours billed by 5%,
resulting in a reduction of $173.00.5 Petitioner is therefore awarded final attorneys’ fees of
$7,330.40.

          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 $394.98 in attorneys’ costs. Fees App. at 2. This amount consists of acquiring medical
records, postage costs, and a process server fee for a subpoena. Petitioner has provided adequate
documentation for these costs except for an entry titled “Bactes – Dr. Svetlana Enman Records
paid online” in the amount of $12.59. Fees App. at 13. Because petitioner has not provided a receipt
or invoice as proof of this cost, it will not be compensated. Petitioner is thus entitled to final
attorneys’ costs of $382.39.

II.       Conclusion

       Based on all the above, the undersigned finds that petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:

    Attorneys’ Fees Requested                                                $7,623.40
    (Reduction to Fees)                                                     - ($293.00)
    Total Attorneys’ Fees Awarded                                            $7,330.40

    Attorneys’ Costs Requested                                                $394.98
    (Reduction of Costs)                                                     - ($12.59)
    Total Attorneys’ Costs Awarded                                            $382.39

    Total Attorneys’ Fees and Costs                                          $7,712.79

        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, other than the reductions noted above, is reasonable. Accordingly, the undersigned awards
the following:

      1) A lump sum in the amount of $7,712.79, representing reimbursement for petitioner’s
         attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney,
         Mr. Paul Brazil.

       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.6

5
    ($3,580.00 billed by paralegals - $120.00 rate reduction) * 0.05 = $173.00.
6
  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
IT IS SO ORDERED.

                    s/Herbrina D. Sanders
                    Herbrina D. Sanders
                    Special Master




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