     In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         (Filed: June 19, 2020)


* * * * * * * * * * * * * *
GLADYS GUZMAN,             *                                     UNPUBLISHED
                           *                                     No. 15-736V
         Petitioner,       *
                           *                                     Special Master Dorsey
v.                         *
                           *                                     Attorneys’ Fees and Costs
                           *
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *

Michael A. London, Douglas & London, P.C., New York, NY, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, D.C., for respondent.

                           DECISION ON ATTORNEYS’ FEES AND COSTS1

          On July 16, 2015, Gladys Guzman (“petitioner”) filed a petition seeking compensation
    under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner
    alleged that she suffered from cutaneous vasculitis due to her receipt of the influenza vaccination
    on February 18, 2014. Petition at 1. ECF No. 1. An entitlement hearing was held on October 25,
    2018, in New York, New York. On May 14, 2019, the previously assigned special master issued
    his Decision denying entitlement.3



1
  This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id.
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. §§ 300aa.
3
    This case was reassigned to the undersigned for resolution of attorneys’ fees and costs on October 7, 2019.
       On December 11, 2019, petitioner filed an application for attorneys’ fees. Motion for
Attorney Fees and Costs (ECF No. 50). In that motion, petitioner requested $47,391.50 in
attorneys’ fees. On December 18, 2019, petitioner filed a supplemental motion, requesting
$13,856.63 in attorneys’ costs (bringing the total requested reimbursement for counsel to
$61,248.13) and $2,087.59 in costs personally incurred by petitioner. Respondent filed his
response on December 23, 2019 indicating that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Response, ECF No. 54, at 2.

       For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $61,170.41.

           I.     Discussion

        Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
and costs “if the special master or court determines that the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.” Id. at
§15(e)(1). In this case, although petitioner was denied compensation, the undersigned finds that
both good faith and reasonable basis exist. Accordingly, a final award of reasonable attorneys’
fees and costs is proper.

                      a. Reasonable Attorneys’ Fees

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s 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, a court first determines “an
initial estimate of a reasonable attorney’s 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.

        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 and Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (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 [her]
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 a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).


                                               2
            A special master need not engage in a line-by-line analysis of a petitioner’s fee
    application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
    719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
    attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
    and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests …
    [v]accine program special masters are also entitled to use their prior experience in reviewing fee
    application.” Saxton, 3 F. 3d at 1521.

                                              i.   Reasonable Hourly Rates

           Petitioner requests the following hourly rates for the work of her counsel: for Mr.
    Michael London, $375.00 per hour for work performed in 2015-2016, $400.00 per hour for work
    performed in 2017-2018, and $425.00 per hour for work performed in 2019; and for Ms. Virginia
    Anello, $350.00 per hour for work performed in 2015-2016, $375.00 per hour for work
    performed in 2017-2018, and $400.00 per hour for work performed in 2019. These rates require
    a reduction.

           Concerning Mr. London’s requested 2017 rate, the undersigned finds that it exceeds what
    Mr. London has previously billed at and been awarded for his 2017 Vaccine Program work. See
    Seminerio v. Sec’y of Health & Human Servs., No., 2017 WL 4173714, at *1 (Fed. Cl. Spec.
    Mstr. Aug. 18, 2017) (awarding Mr. London $375.00 per hour for work performed in 2017).
    Application of this rate results in a reduction of $22.50. Concerning Mr. London’s requested
    2018 and 2019 rates, the undersigned finds them to be reasonable given Mr. London’s
    experience, both overall and within the Vaccine Program.

            Turning next to the rates requested by Ms. Anello, the undersigned finds they also require
    a reduction. Similar to her colleague Mr. London, Ms. Anello has previously billed at and been
    awarded $350.00 per hour for her work in 2017. Id. The undersigned will therefore compensate
    her 2017 work at $350.00 per hour. Concerning 2018, the undersigned finds that $375.00 per
    hour is reasonable – in 2018 Ms. Anello had approximately 12 years of overall experience and
    has participated in numerous Vaccine Program cases. However, $400.00 per hour for work in
    2019 is excessive, as such a rate would place her near the top of the 11-19 year range despite her
    overall experience (approximately 13 years) being at the lower end of that range. In the
    undersigned’s experience, an appropriate hourly rate for Ms. Anello’s work in 2019 would be
    $380.00 per hour, higher than the midpoint in the fee schedule range which reflects her overall
    Vaccine Program experience but an overall experience level at the lower end of that range.
    Application of these hourly rates results in a reduction of $327.00.4

                                        ii.         Reasonable Hours Expended


4
 2017: ($375.00 per hour requested - $350.00 per hour awarded) * 9.8 hours billed = $245.00.
2019: ($400.00 per hour requested - $380.00 per hour awarded) * 4.1 hours billed = $82.00.
                                                         3
            The undersigned has reviewed the submitted billing entries and finds the total number of
    hours billed to be reasonable. The billing entries accurately reflect the nature of the work
    performed and the undersigned does not find any of the entries to be objectionable. Respondent
    also has not indicated that he finds any of the entries to be objectionable either. Accordingly,
    petitioner is awarded final attorneys’ fees of $47,042.00.

                           b. Attorneys’ Costs

            Petitioner requests a total of $13,856.63 in attorneys’ costs. This amount is comprised of
    acquiring medical records, acquiring medical literature, postage, expert work performed by Dr.
    David Axelrod, and the cost of acquiring a transcript of the entitlement hearing. At the time
    petitioner filed her supplemental motion for attorneys’ costs, petitioner’s motion included a list
    of the claimed expenses but contained no documentation supporting them. Accordingly, the
    undersigned ordered petitioner to file adequate supporting documentation. Order, dated April 2,
    2020, ECF No. 55. Petitioner filed a second supplemental motion on April 16, 2020, providing
    documentation for most, but not all, of the requested attorneys’ costs. Petitioner noted that
    “because of the Coronavirus, Petitioner’s counsel’s office is ‘physically’ closed although it is
    ‘virtually’ open. Fortunately, Petitioner’s counsel was able to electronically access a majority of
    the receipts and invoices supportive of Petitioner’s counsel’s identified expenses. However, for
    a small number of expenses, particularly expenses for medical literature, receipts or invoices
    were unavailable in electronic form.” ECF No. 56 at 1-2.

            While the undersigned understands and appreciates the increased difficulty in conducting
    legal business as a result of the coronavirus pandemic, and is aware that her Order requesting
    supporting documentation was issued after lockdown measures took place in New York City,
    that does not excuse the fact that supporting documentation should have been provided when
    petitioner initially filed her motion for attorneys’ fees and costs, either on December 11 or
    December 18, 2019. As mentioned previously when discussing hourly rates, Mr. London and
    Ms. Anello have significant prior Vaccine Program experience, and thus are no doubt aware of
    the longstanding requirement that requests for attorneys’ costs must be supported by
    documentation such as invoices or receipts.5 The undersigned will therefore deduct $147.81
    from the final award of costs for undocumented expenses.

                          c. Petitioner’s Costs

        Pursuant to General Order No. 9, petitioner states she has personally incurred costs of
$2,087.59. Like the attorneys’ costs, petitioner has provided documentation of only some of these
costs. Petitioner notes that most of the costs cannot be supported with documentation because
cash was used in the transaction. ECF No. 56 at 3. However, these costs (airfare, taxi fare, etc.)
are services for which receipts are typically available, even if cash is used as payment. Petitioner’s
request for compensation also asks for estimated amounts rather than sums certain (e.g., petitioner
states she traveled via taxi to meet with counsel six times with each ride costing approximately

5
 See Guidelines For Practice Under The National Vaccine Injury Compensation Program, Section X at 71 (available
at: http://www.cofc.uscourts.gov/sites/default/files/Guidelines-4.24.2020.pdf).
                                                      4
$75.00). The Vaccine Program cannot reimburse estimated costs. Accordingly, petitioner is
awarded final costs of $419.59, the amount which has been supported.

              II. Conclusion

        Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and her counsel as follows:

    Attorneys’ Fees Requested                                                     $47,391.50
    (Total Reduction from Billing Hours)                                          - ($349.50)
    Total Attorneys’ Fees Awarded                                                 $47,042.00

    Attorneys’ Costs Requested                                                    $13,856.63
    (Reduction of Costs)                                                          - ($147.81)
    Total Attorneys’ Costs Awarded                                                $13,708.82

    Total Attorneys’ Fees and Costs Awarded                                       $60,750.82

    Petitioner’s Costs                                                              $419.59

    Total Amount Awarded                                                          $61,170.41

Accordingly, the undersigned awards the following:
1) a lump sum in the amount of $60,750.82, representing reimbursement of petitioner’s
   attorneys’ fees and costs, in the form of a check payable jointly to petitioner and
   petitioner’s counsel of record, Mr. Michael London; and

2) a lump sum in the amount of $419.59, representing reimbursement of petitioner’s
   costs, in the form of a check payable to petitioner.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
                                                                        6
of Court SHALL ENTER JUDGMENT in accordance with this decision.

IT IS SO ORDERED.

                                                     s/Nora Beth Dorsey
                                                     Nora Beth Dorsey
                                                     Special Master




6
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice enouncing
the right to seek review.

                                                         5
