# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16

- 542 V

Filed: April 18, 2017



### * * * * * * * * * * * * * *

JAMES G. MCLACHLAN

, * Special Master Sanders



### *

Petitioner, * Attorney s ’ Fees and Costs ; Reasonable



### * Amount to Which Respondent Does Not



### v. * Object.



### *

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

Douglas L. Burdette

, Burdette Law, PLLC

, Seattle, WA , for Petitioner.

Adriana R. Teitel , United States Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

On May 3 , 201 6

, James McLachlan (“Petitioner”) filed a petition for compensation under

the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

- 1 to

- 34 ( 20 12 )

. 2

Petitioner alleged that an influenza (“flu”) vaccine administered on November 14, 2014 caused

him to suffer from a shoulder injury related to vaccine administration ( “ SIRVA ” )

. Peti tion at

Preamble, filed May 3 , 2016. On April 5 , 2017

, the undersigned issued a d ecision awarding

compensation to Petitioner pursuant to the parties’ joint stipulation. Decision, ECF No. 24

.

1 This decision shall be posted 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) . In accordance with Va ccine

Rule 18(b), a party has 14 days to identify and move to delete medical or other information that

satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with the rule requirement, a

motion for redaction must include a proposed redacted de cision. If, upon review, the

undersigned agrees that the identified material fits within the requirements of that provision, such

material will be deleted from public access.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.

No. 99

- 660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa

- 10 et seq. (2012)

(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42

U.S.C. § 300aa of the Act.2

On April 6 , 2017, Petitioner fi led a Motion for Attorney ’ s Fees . Mot. Att’y’s Fees, ECF

No. 28

. Petitioner requested attorneys ’ fees in the amount of $ 4,929 .25 and attorneys’ costs in the

amount of $ 799.61

. Id. at 1

- 2. On April 18, 2017, Respondent indicated that he “does not object

to the overall amount sought, as it is not an unreasonable amount to have been incurred for

pro ceedings in this case to date.” Resp ’ t ’ s R esp., ECF No. 29. Respondent also stated that

“Respondent’s lack of objection to the amount sought in this case should no t be construed as

admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or

the other litigation related costs.” Id.

The undersigned has reviewed Petitioner’s counsel’s detailed records of time and expenses

incu rred in this case, and they are reasonable. 3 In accordance with the Vaccine Act, 42 U.S.C. §

300aa

- 15(e) (2012), the undersigned finds that Petitioner is entitled to attorneys’ fees and costs.

Accordingly, the undersign ed hereby awards the amount of $5,728.86

, 4 in the form of a check

made payable jointly to Petitioner and Petitioner’s counsel, D ouglas L. Burdette , of Burdette

Law , PLLC

. 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. 5

IT IS SO ORDERED.

/s/ Herbrina D. Sanders

Herbrina D. Sanders

Special Master

3 Petitioner’s application for fees and costs, al though unopposed, relies upon proposed hourly

rate s for Pe titioner’s counsel, Douglas Burdette and Kelly Burdette , who practice in S eattle

, Washington . Respondent does not maintain an objection to the amount of fees and costs sought

by Petitioner, and I find that the total sum requested is reasonable under the circumsta nces.

Therefore, I do not reach th e question of whether Douglas Burdette and Kelly Burdette are

entitled to the forum rate under the test established by the Federal Circuit in Avera v. Sec’y of

H ealth & Human Servs. , 515 F.3d 1 343, 1349 (Fed. Cir. 2008). T his decision does not constitute

such a determination.

4 This amount is intended to cover 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 fees (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).

5 Entry of judgment can be expedited by each party’s filing o f a notice renouncing the right to

seek review. Vaccine Rule 11(a).