# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: April 23, 2020

* * * * * * * * * * * * * *

DEBRA DIANE NICHOLSON, * UNPUBLISHED

*

Petitioner, * No. 1 8

- 953 V

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * *

Ronald C. Homer

, Conway, Homer, P.C., Boston , MA , for Petitioner s

. Kyle E. Pozza , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On January 9, 2020, Debra Diane Nicholson (“Petitioner”) filed a motion for attorneys’

fees and costs. Motion for Attorne y Fees and C o sts (“Fees App.”) (ECF No. 35 ). For the reasons

discussed below, I GRANT Petitioner ’ s motion for attorneys’ fees and costs and award a total of

$ 16,553.21

.

I. Procedural History

On July 2, 2018

, Petitioner filed a petition in the National Vaccine Injury Compensation

Program

. 2 Petitioner alleged that as a result of receiving an influenza (“flu”) vaccine on September

11, 2015, she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”)

. See

Pet ition (ECF No. 1). On September 19, 2019, the parties filed a stipulation, which I adopted as

1 I intend to post this Ruling on the United States Court of Federal Claims' website. This means the R uling 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 unpu blished 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 The National V accine 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.2

my Decision awarding compensation on September 20, 2019. ECF No. 30.

On January 9, 2020 , Petitioner filed a motion for final attorneys’ fees and costs. Petition er

request s compensation for her atto rney s at Conway, Homer, P.C. i n the total amount of $ 16,553.21

, representing $ 15,015.80 i n attorneys’ fees and $ 1,005.72 in costs. Fees App. at 1

- 2

. Pursuant to

General Order No. 9, Pe titioner warrant s she ha s personally incurred costs of $531.69 in pursuit

of her claim. Id. at 2. Respondent reacted to the fees motion on January 21 , 2020

, stating that

“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are

met in this case .” R esponse at 2 (ECF No. 37 ). Petitioner s did not file a reply thereafter.

The matter is now ripe for adjudication.

II. Analysis

Under the Vaccine Act, the special master may award reasonable attorneys ' fees and costs

for a petition that does not result in an award of compensation but was filed in good faith and

supported by a reasonable basis. § 300aa

– 15(e)(1). Here, I have no doub t that an award of final

attorneys’ fees and costs is proper. I already found the claim had reasonable basis when awarding

Petitioners ’ interim attorneys’ fees and costs on May 18, 2016 , and the work of counsel on the

appeals was reasonable (and, at least in the case of the appeal to the Court of Federal Claims,

necessary). Accordingly, a final award of attorneys’ fees and costs in this case is proper.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and

the expenses in curred” are reasonable. Wasson v. Sec'y of Health & Human Servs. , 24 Cl. Ct. 482,

484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is

filed. Id. at 484 n. 1 . The special master has the discretion to reduce awards sua sponte , independent

of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs. , 86 Fed.

Cl. 201, 208

– 09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs

. , 85 Fed. Cl. 313 (Fed.

Cl. 2008), aff'd No. 99

– 537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees

I have reviewed the rates requested by P etitioner for the work of her counsel at Conway,

Homer, P.C. (the billing records reflect that the majority of attorney work was performed by M s.

Meredith Daniels with supporting work done by Mr. Ronald Homer, Mr. Joseph Pepper, Ms.

Lauren Faga, Mr. Patrick Kelly, and Mr. Nathaniel En os ) and I find the rates requested herein to

be consistent with what these attorneys have previously been awarded for their Vaccine Program

work and reasonable in light for the work performed in this case.

Turning next to review of the submitted billing s tatement, I find that the overall h ours spent

on this matter appear to be reasonable . The entries are reasonable and accurately describe the work

being performed and the length of time it took to perform each task. Respondent also has not

identified any particular entries as being objectionable. Therefore, Petitione r is entitled to final

attorneys’ fees of $ 15,015 .80

.

b. Attorneys’ Costs3

Like attorneys’ fees, a request for reimbursement o f costs must be reasonable. Perreira v.

Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner request s total

attorneys’ costs in the amount of $ 1,005.72

. This amoun t is comprised of acquiring medical

records, postage, travel costs to meet with Petitioner. Petitioner ha s provided adequate

documentation supporting all of the requested costs, and all appear reasonable in my experience.

Petitioner is therefore entitled to the full amount of costs sought.

c. Petitioner’s Costs

Pursuant to General Order No. 9, Petitioner states that she has personally incurred costs of

$531.69 related to her case. ECF No. 36. This amount is comprised of postage and the Court’s

filing fee. Petitioner has provi ded adequate documentation to support the costs and all appear to

be reasonable. Therefore, Petitioner shall be fully reimbursed.

III. Conclusion

In accordance with the foregoing, Petitioner ’ s motion for attorneys’ fees and costs is

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

Attorneys’ Fees Requested $ 15,015.80

(Reduction of Fees )

- Total Attorneys’ Fees Awarded $ 15,015.80

Attorneys’ Costs Requested $ 1,005.72

(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 1,005.72

Total Attorneys’ F e es and Costs $ 16,021.52

Petitioner’s Costs $531.69

Total Amount Awarded $ 16,553.21

Accordingly, I award the following:

1) a lump sum in the amount of $ 16,021.52

, representing reimbursement for P etitioner ’ s

attorneys’ fees and costs, in the form of a che ck payable to P etitioner and her

attorney, M r. Ronald Homer ; 3 and

3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses a ll charges by

the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, Section 15(e)(3)

prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded

herei n. See generally Beck v. Sec’y of Health & Human Servs. , 924 F.2d 1029 (Fed. Cir. 1991).4

2) a lump sum in the amount of $531.69, representing reimbursement for 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 of the

court shall enter judgment in accordance herewit h. 4

IT IS SO ORDERED.

/ s/ Thomas L. Gowen

Thomas L. Gowen

Special Master

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine

Rule 11(a).