# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 6 , 2019

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

FRANKIE REESE, * Unpublished

Petitioner, *

* No. 18

- 647V

*

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs;

AND HUMAN SERVICES, * Decision on Stipulation

*

Respondent. *

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

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

Alexis B. Babcock, Department of Justice, Washington, D.C., for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On May 7, 2018, Frankie Reese (“petitioner”), filed a petition pursuant to the Nationa l Vaccine

Injury Compensation Program. Petitioner alleged as a result of influenza (“flu”) vaccine received on

September 26, 2016, she suffered brachial plexopathy. Petition at Preamble (ECF No. 1). The parties

agreed on a stipulated resolution of this case awarding compensation to petitioner on August 15, 2019.

ECF No. 26. On July 16, 2019, the undersigned entered a Decision on Stipulation. ECF No. 27.

On September 10, 2019, petitioner filed an application for attorneys’ fees and costs. Petition er’s

Fees Application (“Fees App.”) (ECF No. 31). Petitioner requests a total of $9,941.80 in attorneys’ fees

and costs. Fees App. at 3. Respondent responded to the motion on September 13, 2019. Respondent’s

Response (ECF No. 32). Respondent stated, “ Respondent is satisfied that the statutory requirements for

an award of attorneys’ fees and costs are met in this case,” and requests that the undersigned “exercise his

discretion and determine a reasonable award for attorneys’ fees and costs.” For the re asons discussed

below, I GRANT petitioner’s motion for attorney’s fees and costs and award a total of $9,941.80.

1 P ursuant to the E

- Government Act of 2002, see 44 U.S.C. § 3501 note (2012), b ecause this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7

. This means the

opinion will be available to anyone with access to the Interne t. Before the decision is posted on the court’s

website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:

(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that

includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the

opinion

. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the

court’s website without any changes. Id.2

I. Legal Standard

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for

any petition that results in an award of compensation. 42 U.S.C. § 300aa

- 15(3)(1). Petitioner in this case

was awarded compensation pursuant to a Stipulation and therefore he shall be awarded reasonable

attorneys’ fees and costs.

The Vaccine Act permits an award of “reasonable” atto rneys’ fees and costs. 42 U.S.C. § 300aa

15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine reasonable

attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs. , 515 F.3d

1343, 1349 (F ed. Cir. 2008). Using the lodestar approach, a court first determines the reasonable hourly

rate, which is then applied to the number of hours reasonably expended on the litigation. Id . at 1347

- 58

(citing Blum v. Stenson , 465 U.S. 886, 888 (1984)).

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and 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 respondPent. Sabella v. Sec’y of Health & Human Servs. , 86 Fed. Cl. 201, 208

- 09

(Fed. C l. 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). Special masters may look to their

experience and judgment to reduce the number of hours billed to a level they find reasonable for the work

performed. Saxton v. Sec’y of Health & Human Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line

- by

line evaluation of the billing records is not required. Wasson , 24 Cl. Ct., aff’d in relevant part , 988 F.2d

131 (Fed Cir. 1993) (per curiam).

II. Reasonable Attorneys’ Fees and Costs

a. Hourly Rate

Petitioner requests compensation for her attorneys, Mr. Paul Brazil, Ms. Amy Senerth and Ms.

Bridget McCullough for work performed in 2017, 2018 and 2019. Fees App. at 2

- 3.

Petitioner requests that Mr. Brazil be compensated at $ 300 .00 per hour for work performed in

2017; $317.00 per hour for work performed on 2018; and $325.00 per hour for work performed in 2019.

Fees App. at 6

- 8. Petitioner requests that Ms. Senerth an d Ms. McCullough be compensated at $2 25 .00

per hour for work performed in 2 017 and 2018. Id. Petitioner also requests that paralegals be

compensated at rates of $125.00 per hour , $140.00 per hour and $165.00 per hour for work performed on

this case.

Petitioner’s requested rates are consistent with the rates awarded by myself other special masters.

Additionally, these rates are consistent with the Office of Special Masters Att orneys’ Forum Hourly Rate

Fee Schedule. 2 Accordingly, the requested rates are reasonable and no adjustment is necessary.

2 OSM Attorn eys’ Forum Hourly Rate Fee Schedules, http://www.cofc.uscourts.gov/node/2914 (accessed on Oct.

21, 2019).3 b. Hours Expended

As noted previously, a line

- by

- line evaluation of the invoiced hours is not required; instead, I may

rely on my experience to evaluate the reasonableness of the hours expended. Wasson , 24 Cl. Ct. at 484.

Accordingly, I may reduce the number of hours claimed based on past experience. Saxton , 3 F.3d at 1521.

Petitioner included a detailed time sheet that provides a break down of the tasks performed by each

attorney and paralegals in the relevant time period. Fees App. Ex. 1. After reviewing the invoice of the

hours billed, I find that the hours bill ed are reasonable and no reductions are necessary. Accordingly,

p etitioner is awarded attorney’s fees in the amount of $ 9

, 460.60.

c. Attorneys’ Costs

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

of Health & Human Servs. , 27 Fed Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $ 481.20 in

attorneys’ costs. These include the costs of obtaining medical records, postage and the filing fee for the

petition. Fees App. at 2 . These costs are typical of the expenses in the Vaccine Program. The amounts

a re reasonable and adequately documented. Therefore, these costs will be awarded in full. Accordingly,

petitioner is awarded $ 481.20 in attorneys’ costs.

III. Conclusion

In conclusion with the foregoing, petitioner’s application for attorneys’ fees and costs is

GRANTED. Accordingly, I award the following:

1) A lump sum in the amount of $ 9,941.80 , representing reimbursement for petitioner’s

attorneys’ fees and costs, in the form of a check payable jointly to petitioner and his

counsel, Mr. Paul Brazil

. 3

In the a bsence 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.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

3 Th is amount is intended to cover all legal expenses incurred in this matter. This award e ncompasses 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 is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule

11(a).