# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: August 7, 2020

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

KELLY CLARK

, * UNPUBLISHED

*
Petitioner, * No. 1 8

- 1 381 V

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Andrew D. Downing

, Van Cott & Talamante, PLLC, Phoenix, AZ

, for Petitioner. Jennifer L. Reynaud , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On March 2 5 , 2020, Kelly Clark (“Petitioner”) filed a motion for attorneys’ fees and costs.

Motion for Attorne y Fees and C o sts (“Fees App.”) (ECF No. 4 1 ). For the reasons discussed below,

I GRANT Petitioner ’ s motion for attorneys’ fees and costs and award a total of $ 23,933.09

.

I. Procedural History

On September 11 , 2018

, Petitioner filed a petition in the National Vaccine Injury Compensation Program

. 2 Petitioner alleged that she suffered immune thrombocytopenic purpura (“ITP”) as a result of receiving an influenza vaccin ation o n October 19, 2015

. See Petition (ECF
No. 1). On March 10, 2020, Petitioner filed a motion for a decision dismissing her petition, and on March 11, 2020, I issued my decisi on dismissing the petition for insufficient proof. (ECF No. 35).

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

materi al 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 Because this unpublished ruling contains a reasoned explanation for the action in this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 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

On March 2 5 , 2020 , Petitioner filed a motion for final attorneys’ fees. Petition er request s compensation for her atto rney , Mr. Andrew Downing

, i n the total amount of $ 24,433.09

, representing $ 23,184.00 i n attorneys’ fees and $ 1,249.09 in costs. Fees App. at 1

. Pursuant to
General Order No. 9, Petitioner warrant she has not personally incurred any costs in pursuit of t his

claim

. Fees App. at 6

. Respondent reacted to the fees motion on March 27 , 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. 4 3 ). Petitioner 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 i n good faith and supported by a reasonable basis. § 300aa

– 15(e)(1). Here, I do not doubt that the petition was filed in a good faith belief that petitioner’s vaccination caused her alleged ITP, and I find that there was a reasonable basis to file the petit ion. Respondent also has not challenged the reasonable basis of the petition. Therefore, an award of reasonable final attorneys’ fees and costs is proper in this case.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, a nd the expenses incurred” 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 s for the work of their counsel , Mr. Andrew Downing and Ms. Courtney Van Cott

, and I find the rates requested herein to be consistent

with what they 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 statement, I find that the overall h ours spent

on this matter appear to be largely reasonable . The entries are reasonable and accurately describe the work being performed and the length of time it took to perform each task. However, a small

amount must be reduced for overbilling by firm paralegals. In the instant case, the overbilling

incudes tim e expended on clerical/administrative tasks such as receiving and paying invoices and a general excessive amount of time billed to complete various tasks such as preparing and filing documents and reviewing filings from the Court and Respondent . These issu es have all been previously noted concerning the work of Van Cott & Talamante paralegals. See, e.g., Sheridan v. Sec’y of Health & Human Servs. , No. 17

- 669V, 2019 WL 948371, at *2

- 3 (Fed. Cl. Spec. Mstr.
Jan. 31, 2019); Moran v. Sec’y of Health & Human Ser vs. , No. 16

- 538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019).3

Upon review, an appropriate reduction for these issues is $ 50 0.00. Petitione r s are therefore

awarded final attorneys’ fees of $ 22,684.00

.

b. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total attorneys’ costs in the amount of $ 1,249.09. Fees App. at 23

- 24

. Petiti oner has 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.

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 $ 23,184.00
(Reduction of Fees)

- ($ 500.00 ) Total Attorneys’ Fees Awarded $ 22,684.00

Attorneys’ Costs Requested $ 1,249.09
(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 1,249.09

Total Attorneys’ Fees and Costs $ 23,933.09

Accordingly, I award a lump sum in the amount of $ 23,933.09

, representing

reimbursement for P etitioner ’ s attorneys’ fees, in the form of a che ck payable to P etitioner

and her attorney, M r. Andrew Downing

. 3

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. 4

IT IS SO ORDERED.

3 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,” 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

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

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).4 / s/ Thomas L. Gowen

Thomas L. Gowen Special Master