# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1113 V

Filed: April 9, 2019

UNPUBLISHED

LINDA KOLA CNY

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Attorneys’ Fees and Costs

Lawrence G. Michel, Kennedy, Berkley, et. al., Salina, KS , for petitioner.

Camille Michelle Collett , U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On August 18, 2017 , petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq.

, 2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) following an influenza (“flu”) vaccine administered on September 26, 2016 . Petition at 1

. On March 20, 2019 , the undersigned issued a decision awarding compensation to petitioner based on the respondent’s proffer

. ECF

No. 40

.

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.

This means the decision 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 o f 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 Because this unpublished decision contains a reasoned explanation for the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).2 On March 22, 2019 , petitioner filed a motion for attorneys’ fees and costs. ECF

No. 44 . Petitioner requests attorneys’ fees in the amount of $ 9,600.00 and attorneys’ costs in the amount of $ 129.01

. Id. at 1

- 2

. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out

- of

- pocket

expenses. Id. at 2. Thus, the total amount requested is $ 9,729.01

.

On March 23, 2019 , respondent filed a response to petitioner’s motion. ECF No.

45

. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in

this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees

and costs.” Id. at 3.

Petitioner filed no reply.

The undersigned has reviewed the billing records s ubmitted with petitioner’s request and finds a reduction in the amount of fees to be awa rded appropriate for the

reason listed below.

I. Legal Standard

The Vaccine Act permits an award of reasonable attorneys’ fees and costs

. § 15(e). 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 & Hum an 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 & 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). A special master need not

engage in a l ine

- by

- line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs. , 102 Fed. Cl. 719, 729 (2011).

The p etitioner “bears the burden of establishing the hours expended , the rates charged, and the expense s incu rred.” Wasson v. Sec’y of Health & Human Servs., 24

Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive,3 redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley , 461 U.S. , at 434.

II. Attorney Fees

A. Hourly Rates

Petitioner requests the hourly rate of $300 for all time billed by attorney Lawrence Michel. The requested rate exceeds the rates that have previously been

awarded to Mr. Michel in 2017 and 2018 , which was $260 and $275, respectively

. See Thompson v. Sec’y of Health & Human Servs., No. 17

- 0326V (Fed. Cl. Spec. Mstr. March 25, 2019). The undersigned reduces Mr. Michel’s hourly rate to the previously

awarded rates therefore reduc ing the request for attorney costs in the amount of $759.00

. I n regard to the requested rate of $300 per hour for 2019, the undersigned

finds this rate reasonable given Mr. Michel’s continued practice and experience gained in the Vaccine Program and award s it herein.

III. Attorney Costs

Petitioner requests reimbursement for attorney costs in the amount of $ 129.01

. After reviewing petitioner’s invoices, the undersigned finds no cause to reduce petitioner’s’ request and awards the full amount of attorney costs sought.

IV. Conclusion

Based on the reasonableness of petitioner’s request, the undersigned GRANTS

IN PART petitioner’s motion for attorneys’ fees and costs.

Accordingly , the undersigned awards the total of $ 8,970.01 3 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel

Lawrence G. Michel

.

The clerk of the court shall enter judgment in accordance herewith. 4

3 This amount is intended to c over all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting f ees (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).

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.4 IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master