    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                      Filed: April 27, 2020

* * * * * * * * * * * * * *                                 UNPUBLISHED
MARIE SCUTT,               *                                No. 16-1599V
                           *                                Special Master Horner
         Petitioner,       *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                                Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
David B. Turret, Sanocki Newman & Turret, LLP, New York, NY, for Petitioner.
Heather L. Pearlman, United States Department of Justice, Washington, D.C., for Respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS 1

        On December 2, 2016, Marie Scutt 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 Ms. Scutt suffered from transverse myelitis as a result of an influenza
vaccination. On March 15, 2019, the parties filed a Stipulation, which the previously assigned
special master adopted as her Decision awarding compensation on the same day. Decision, ECF
No. 33. 3

          On October 2, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No.


1
 I intend 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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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).
3
    On October 8, 2019, this case was reassigned to me for resolution of attorneys’ fees and costs.
36 (“Fees App.”). 4 Petitioner requests total attorneys’ fees and costs in the amount of $29,681.60
(representing $27,825.10 in fees and $1,840.50 in costs). 5 Fees App. at 6. Pursuant to General
Order No. 9, petitioner warrants that she has not personally incurred any costs related to the
prosecution of her petition. ECF No. 42. Respondent responded to the motion on October 7, 2019,
indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs
are met in this case” and requests that I exercise my discretion and determine a reasonable award
for attorneys’ fees and costs. Resp. at 2–3 (ECF No. 27). 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, 1347 (Fed.
Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. (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 894-95. 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.


4
  A decision awarding attorneys’ fees and costs initially issued on March 30, 2020; however, it was
subsequently withdrawn upon petitioner’s filing of a motion to amend/correct the decision. (ECF No. 47.)
The motion requested that the award be made payable to petitioner’s counsel alone because petitioner is
recently deceased. (Id.) I granted that motion on April 27, 2020, (ECF No. 49) and now reissue this
decision.
5
 In petitioner’s original motion, she requested total attorneys’ costs of $1,856.50. Fees App. at 7. On
March 9, 2019, petitioner filed an updated motion for costs, amending the requested amount of costs to
$1,840.50. ECF No. 44.

                                                    2
        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
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. 6

         Petitioner requests the following rates for the work of her counsel: for Mr. Richard
Robbins, $464.00 per hour for all work performed (2015-2019); for Mr. David Turret, $464.00 per
hour for all work performed (2016-2019); for Mr. Ira Newman, $464.00 per hour for all work
performed (2017-2019); for Mr. Edward Sanocki, Jr., $464.00 per hour for all work performed
(2015, 2018); for Mr. Joshua Fogel, $405.00 per hour for all work performed (2015-2018); and for
Mr. Carl Tegtmeier, $378.00 per hour for work performed in 2017. Fees App. at 6. Petitioner also
requests paralegal rates of $150.00 per hour for all work performed. Id. As an initial matter, I note
that all work in this case was performed in New York City, New York. Thus, there is no question
that counsel are entitled to in-forum rates. The actual rates requested, however, require adjustment.

        I shall address the rates for Mr. Robbins, Mr. Turret, Mr. Newman, and Mr. Sanocki
simultaneously because their credentials are all similar – they all have 30+ years of experience at
all times during the pendency of this matter, which places them in the highest range of experience
on the OSM Attorneys’ Forum Hourly Rate Fee Schedules, but they are all inexperienced in terms
of Vaccine Program litigation. The fact that counsel have all chosen to bill at identical rates in this

6
 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.


                                                   3
matter further underscores that they are, on the whole, attorneys of roughly similar experience and
quality. I shall therefore compensate them at identical rates for this case. The issue with the
requested rate of $464.00 per hour is that it represents the highest possible rate an attorney can be
awarded in 2019. Such a rate exceeds the maximum awardable rate in all prior years and is
excessive for work performed in 2019 in this case because counsel does not have the necessary
Vaccine Program experience to be entitled to such a rate.

       Based upon all of the relevant McCulloch factors, I find the following rates reasonable for
the work of Mr. Robbins, Mr. Turret, Mr. Newman, and Mr. Sanocki: $400.00 per hour for work
performed in 2015-2016, $410.00 per hour for work performed in 2017, $420.00 per hour for work
performed in 2018, and $430.00 per hour for work performed in 2019.

       Mr. Joshua Fogel was barred in 2006, giving him approximately 9 years of experience
when he began work on this case in 2015. Mr. Fogel does not appear to have any prior Vaccine
Program experience. Based upon the McCulloch factors, I find the following rates reasonable for
Mr. Fogel’s work: $280.00 per hour for work performed in 2015, $295.00 per hour for work
performed in 2016, $310.00 per hour for work performed in 2017, and $320.00 per hour for work
performed in 2018.

        Mr. Tegtmeier was barred in 2010, giving him approximately 7 years of experience in
2017, the only year Mr. Tegtmeier billed time in in this case. Mr. Tegtmeier also does not appear
to have any prior Vaccine Program experience. Based upon the McCulloch factors, the undersigned
finds that $280.00 per hour is a reasonable rate for Mr. Tegtmeier.

       Concerning the rates requested for paralegal work, I note that $150.00 per hour exceeds
the maximum awarded rate for paralegal work in 2015-2017. I will thus compensate paralegal
work in 2015-2016 at $145.00 per hour and paralegal work in 2017 at $148.00 per hour.

        In sum, application of all these adjusted rates results in a reduction of $3,942.60 from the
final award of attorneys’ fees. 7

7
    The individual calculations are as follows:

For Mr. Robbins:
2015: ($464.00 per hour requested - $400.00 per hour awarded) * 8.25 hours billed = $528.00.
2016: ($464.00 per hour requested - $400.00 per hour awarded) * 5.5 hours billed = $352.00.
2017: ($464.00 per hour requested - $410.00 per hour awarded) * 16.7 hours billed = $901.80.
2018: ($464.00 per hour requested - $420.00 per hour awarded) * 9.3 hours billed = $409.20.
2019: ($464.00 per hour requested - $430.00 per hour awarded) * 0.75 hours billed = $25.50.

For Mr. Turret:
2016: ($464.00 per hour requested - $400.00 per hour awarded) * 0.75 hours billed = $48.00.
2017: ($464.00 per hour requested - $410.00 per hour awarded) * 1.25 hours billed = $67.50.
2018: ($464.00 per hour requested - $420.00 per hour awarded) * 0.45 hours billed = $19.80.
2019: ($464.00 per hour requested - $430.00 per hour awarded) * 0.95 hours billed = $32.30.

For Mr. Newman:
2017: ($464.00 per hour requested - $410.00 per hour awarded) * 0.5 hours billed = $27.00.

                                                   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 ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a
single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing
excessively for intra office communications, attorneys billing excessive hours, [and] attorneys
entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691,
703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be
comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health &
Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).
Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g.,
McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at one-
half of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V,
2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is
inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine
Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2
(Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number
of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–
29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of
Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).




2018: ($464.00 per hour requested - $420.00 per hour awarded) * 0.25 hours billed = $11.00.
2019: ($464.00 per hour requested - $430.00 per hour awarded) * 0.75 hours billed = $25.50.

For Mr. Sanocki:
2015: ($464.00 per hour requested - $400.00 per hour awarded) * 0.75 hours billed = $48.00.
2018: ($464.00 per hour requested - $420.00 per hour awarded) * 0.25 hours billed = $11.00.

For Mr. Fogel:
2015: ($405.00 per hour requested - $280.00 per hour awarded) * 3.75 hours billed = $468.75.
2016: ($405.00 per hour requested - $295.00 per hour awarded) * 2.5 hours billed = $275.00.
2017: ($405.00 per hour requested - $310.00 per hour awarded) * 5.35 hours billed = $508.25.
2018: ($405.00 per hour requested - $320.00 per hour awarded) * 1.45 hours billed = $123.25.

For Mr. Tegtmeier:
2017: ($378.00 per hour requested - $280.00 per hour awarded) * 0.5 hours billed = $49.00.

For Paralegals:
2015-2016: ($150.00 per hour requested - $145.00 per hour awarded) * 1.25 hours billed = $6.25.
2017: ($150.00 per hour requested - $148.00 per hour awarded) * 2.75 hours billed = $5.50.

                                                   5
       Upon review, I find the overall hours billed to be slightly excessive and thus warranting
reduction. I have noticed numerous minor errors with counsel’s billing records for example:

               •   Mr. Fogel routinely billed attorney rates for paralegal tasks such as filing
                   documents and preparing and redacting records (e.g., entries on 1/6/17, 7/7/17,
                   12/21/17, 1/26/18, etc.). Some of the time expended on filing documents was
                   excessive.
               •   Mr. Fogel billed his standard hourly rate to travel to meet with petitioner instead
                   of half of that rate (entry on 3/12/15).
               •   Certain tasks were billed for by multiple attorneys which has led to excessive time
                   billed (e.g., reviewing a memo on 4/19/17, preparation and filing of a status report
                   on 5/9/18, reviewing the settlement offer on 11/13/18, distribution to client on
                   8/28/19, etc.). It is unclear as to why a status report would require the work of two
                   highly experienced attorneys, or why review of the settlement offer would require
                   the work of four individuals, two of whom (Mr. Newman and Mr. Sanocki) were
                   not actively involved in the case.

         For all of these reasons, the undersigned finds it reasonable to reduce the final award of
attorneys’ fees by five percent. This results in a reduction of $1,194.13. 8 Petitioner is thus awarded
final attorneys’ fees of $21,494.25.

          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 $1,840.50 in attorneys’ costs. This amount comprises the cost of obtaining medical
records, postage, photocopies, and the Court’s filing fee. Petitioner has provided adequate
documentation supporting the requested costs and they appear reasonable in my experience.
Petitioner is thus entitled to the full amount of attorneys’ costs sought.

II.       Conclusion

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

    Attorneys’ Fees Requested                                           $27,825.10
    (Reduction to Fees)                                                - ($5,136.73)
    Total Attorneys’ Fees Awarded                                       $22,688.37

    Attorneys’ Costs Requested                                           $1,840.50
    (Reduction of Costs)                                                     -
    Total Attorneys’ Costs Awarded                                       $1,840.50


8
    ($27,825.10 - $3,942.60 reduced for rates) * 0.05 = $1,194.13.


                                                      6
    Total Attorneys’ Fees and Costs                                       $24,528.87

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs, other
than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the
amount of $24,528.87, representing reimbursement for petitioner’s attorneys’ fees and costs,
in the form of a check payable to petitioner’s attorneys, Sanocki Newman & Turret, LLP.

       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. 9

         IT IS SO ORDERED.


                                                 s/Daniel T. Horner
                                                 Daniel T. Horner
                                                 Special Master




9
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

                                                     7
