# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-0404V Filed: July 29, 2016 Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * DVORA GHITZA, *

* Petitioner, *

v. * * Attorneys’ Fees and Costs;

SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

* Respondent. *

*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * Ronald Craig Homer, Conway, Homer & Chin -Caplan, P.C., Boston, MA, for petitioner. Amy Paula Kokot, U.S. Department of Just ice, Washington, DC, for respondent.

DECISION ON ATTORNE YS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On April 22, 2015, petitioner filed a petition for compens ation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine Act”). Petitioner alleged that she suffered a neurological injury as a result of a tetanus diphtheria [“Td”] vaccination on May 17, 2012. (ECF No. 1 at 1). On July 14, 2015, a ruling on entitlement was issued, finding pet itioner entitled to compensation for the Vaccine Table Injury of brachial neuritis. (E CF No. 14 at 1-2). On January 6, 2016, a decision was issued awarding compensation to petitioner based on respondent’s proffer. (ECF No. 25).

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

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 May 19, 2016, petitioner filed an applic ation for attorneys’ fees and costs. (ECF No. 29). Petitioner requests attor neys’ fees in the amount of $19,264.00, attorneys’ costs in the am ount of $659.12, and petitioner’s out-of-pocket costs in the amount of $400.00

, 3 for a total amount of $20,323.12. Id. at 1.

On May 25, 2016, respondent filed a respons e to petitioner’s application. (ECF No. 31). Respondent argues that “[n]eit her the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the re solution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that she “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in

this case.” Id. at 2. Additionally, she “asserts that a reasonable amount for fees and costs in the present case would fall bet ween $13,000.00 and $15,000.00,” citing five “similarly-postured” SIRVA cases where the stipulated award of attorneys’ fees and costs fell within the given range. Id. at 3-4.

On June 6, 2016, petitioner f iled a reply. (ECF No. 32). Petitioner argues that respondent has “selectively” cited stipulated a ttorneys’ fees and costs awards in past cases “attempt[ing] to create a self-serving r ange that is in fact not representative of fee awards in many SIRVA cases.” Id. at 4-5. Petitioner assert s that “respondent’s range for fees and costs is clearly intended to suggest a ‘cap’ on attorneys’ fees and costs” and “provides no helpful or substantive information” for the undersigned to use in making her determination. Id. at 5. Petitioner further argues that respondent has provided “no specific objections to petitioners’ application for attorn eys’ fees and costs” and instead offers only a “‘blanket’ objecti on based upon a vague and unhelpful survey.”

Id. at 8.

Respondent filed a sur-reply to petitioner’s application on June 15, 2016. (ECF No. 34). Respondent asserts that the decision in McCulloch 4 awarded rates to petitioner’s counsel “that ar e contrary to the evidence respondent presented in that case” and respondent cannot “agree to a fee award based on hourly rates that respondent believes lack evidentiary support.” Id. at 2. Respondent further states that she has “made the very practical decision to stop providing detailed objections to fee applications, based on the recognition that it was counterproductive and not achieving the purpose for which it was intended.” Id. at 4. Respondent argues in favor of her “approach of providing ranges [for attor neys’ fees and costs awards] based on the nature and scope of the litigatio n at issue” and notes that the proposed range in the instant claim provides for $1000.00 in costs, 20-25 hours of attorney time at “$400.00 per hour and 32 hours of paralegal time at $125.00 an hour.” Id. at 5-6. Respondent

3 In compliance with General Order #9, petitioner f iled a signed statement indicating she incurred $400.00 in out-of-pocket expenses. (ECF No. 30).

4 McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015)3 asserts this “is a generous number of hours for resolving a straight-forward, conceded brachial neuritis case . . . where judgem ent entered less than nine months after the petition was filed.” Id.

Petitioner filed a sur-reply to respondent’s sur-reply on June 22, 2016 addressing the arguments raised by respondent in her sur-reply. (ECF No. 36).

The undersigned notes that while she has only summarized the arguments presented by the parties in their briefi ng, the undersigned has fully reviewed and considered both parties’ briefs.

The undersigned fully agrees with the McCulloch analysis regarding appropriate hourly rates for the attorneys in the C onway, Homer, and Chin-Caplan law firm and adopts the same reasoning in this case. Furthermore, the under signed has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the under signed finds no cause to reduce the requested hours or rates.

Petitioner requests supplemental attorneys’ fees in the amount of $1,711.50 for preparing the reply brief. (ECF. No. 33). The undersigned notes petitioner requested no supplemental attorneys’ fees for pr eparing her sur-reply. The undersigned has reviewed the submitted billing records and finds the request for additional fees to be reasonable; the full amount r equested, $1,711.50, is awarded. 5 Thus, the total amount awarded for attorneys’ fees and costs is $22,034.62

.

The Vaccine Act permits an award of reasonable attorneys’ fees and cost s. § 15(e). Based on the reasonableness of petitioner’s request, the undersigned

GRANTS petitioner’s application and supplemental application for attorneys’ fees and

costs.

Accordingly, the undersigned awards the total of $22,034.62 6 as follows:

5 The undersigned notes that portions of petitioner’s repl y are similar to a reply filed in another claim by petitioner’s counsel that was before the undersigned. However, as por tions of the reply are unique from the other claim, and petitioner has not billed for her a ttorneys’ work on petitioner’s sur-reply, petitioner’s request for attorneys’ fees for her work on the r eply is not reduced. However, the undersigned may reduce the attorneys’ fees sought for additional filings of a similar reply in other cases.

6 This amount is intended to cover all legal expenses in curred in this matter. This award encompasses all charges by the attorney against a client, “advanced co sts” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from char ging 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 (1) A lump sum of $21,634.62, repr esenting reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Conway, Homer & Chin-Caplan, P.C.; and

(2) A lump sum of $400.00, representing reimbursement for petitioner’s costs, in the form of a check paya ble to petitioner, Dvora Ghitza.

The clerk of the court shall ent er judgment in accordance herewith. 7

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

7 Pursuant to Vaccine Rule 11(a), entry of judgment c an be expedited by the parties’ joint filing of notice renouncing the right to seek review.