# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: February 10 , 2020

* * * * * * * * * * * * * * UNPUBLISHED

JEROME DEBELTZ

, *

* Petitioner, * No. 1 8

- 825 V

* Special Master Oler

v. *

* Attorneys ’ Fees and Costs

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Amy A. Senerth

, Muller Brazil, LLP, Dresher, PA

, for P etitioner. Jeffrey T. Sprague , United States Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY S ’ FEES AND COSTS 1

On June 12, 2018

, Jerome Debeltz (“ P etitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S .C. §§ 300aa

- 10 to

- 34 (2012).

Petitioner alleged that he developed Guillain

- Barré syndrome (“GBS”) and chronic inflammatory demyelinating polyneuropathy (“CIDP”) as a result of receiving an influenza vaccination on

October 7 , 201 6

. See Petition , ECF No. 1

. O n June 21 , 2019, the parties filed a proffer , which the undersigned adopted as her Decision awarding compensation on the same day . Decision, ECF No.

19

.

On October 1 0 , 201 9

, P etitioner filed an application for final attor neys ’ fees and costs. ECF

No. 25 (“Fees App.”). Petitioner requests total atto rneys ’ fees and c osts in the amount of $ 14,638.5 2

, represen ting $ 13,204.50 in attorneys ’ fees and $ 1,434.0 2 in attorney s ’ costs

. Fees

1 The undersigned intend s to post this Ruling on the United States Court of Federal Claims' website. This means the ruling 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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public acc ess. Because this unpublished ruling contains a reasoned explanation for the action in this case,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. 3755.2

App. at 2

. Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs

related to this litigation. Id. Respondent responded to the motion on October 24 , 2019

, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discr etion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2

- 3

, ECF No. 26 . Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys ’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable

attorneys ' fees , and other costs.” § 300aa

– 15(e)(1)(A)

– (B). Petitioners are entitled to an award of

reasonable attorneys ' fees and costs if they are entitled to compens ation under the Vaccine Act, or, even if they are unsuccessful , they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation, he is entitled to a final award of reasonable attorneys’ fees and costs.

It is “well within the special master's discretion” to determine the reasonableness of fees. Saxton v. Sec'y of Health & Human Servs. , 3 F.3d 1517, 1521

– 22 (Fed. Cir. 1993); see also Hines v. Sec'y of Health & Human Servs. , 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys ' fees and costs.”). Applications for attorneys ' fees must include contemporaneous and specific billing

rec ords that indicate the work performed and the number of hours spent on said work. See Savin v. Sec'y of Health & Human Servs. , 85 Fed. Cl. 313, 316

– 18 (2008).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson , 465 U.S. 886, 895 (1984) . The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers o f reasonably comparable skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

Petitioner requests th e following rates of compensation for h is attorneys: for Ms. Amy Senerth, $225.00 per hour for work performed in 2017, $233.00 per hour for work performed in 2018, and $250.00 per hour for work performed in 2019; for Mr. Paul Brazil, $300.00 per hour for

work performed in 2017 and $325.00 per hour for work performed in 2019. These rates are all consistent with what these individuals have previously been awarded for Vaccine Program work, and the undersigned finds them to be reasonable for the instant case as w ell. Accordingly, the requested hourly rates are reasonable and no reductions are necessary

.

b. Reasonable Hours E xpended3

Attorneys ' fees are awarded for the “number of hours reasonably expended on the litigation.” Avera , 515 F.3d at 1348 . Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton

, 3 F.3d at 1521 (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1983)). Additionally, it is well

- established that billing for administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States

, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Huma n Servs. , No. 02

- 1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

Upon review, the undersigned finds the overall hours billed to be largely reasonable, with only a small reduction necessary for excessive time billed on paralegal tasks. In the instant case, paralegals routinely billed over half an hour (and up to 0.8 hours) on routine tasks such as preparing medical records requests and updating a case memorandum when records were received. To adjust for these issues, the undersigned will reduce the final award of fees by $375.00 to account for three hours of excess paralegal time. Petitioner is therefore awarded $12,829.50 in final attorneys’ fees.

c. Attorneys ’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitione r requests
a total of $ 1,434.0 2 in attorneys ’ cost s

. Fees App. at 14. This amount is comprised of acquiring

medical records, the Court’s filing fee

, and postage . All of these costs are typical of Vaccine Program litigation and are reasonable in the undersigned’s experience and Petitioner has provided adequate documentation supporting the request. Accordingly, the reques ted attorneys’ costs are

reasonable and shall be reimbursed in full.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that P etitione r’s request for fees and

costs is reasonable. Based on the above analysis, the undersigned f inds that it is reasonable to
compensate P etitioner and h is counsel as follows:

Attorneys ’ Fees Requested $ 13,204.50 (Reduction to Fees )

- ($375.00) Total Attorneys ’ Fees Awarded $ 12,829.50

Attorneys ’ Costs Requested $ 1,434.0 2 (Reduction to Costs)

- Total Attorneys’ Costs Awarded $ 1,434.0 2

Total Amount Awarded $ 14,263.5 2

Accordingly, the undersigned awards the following:4

1) a lump sum in the amount of $ 14,263.5 2

, representing reimbursement for reasonable
attorneys ’ fees and costs, in the form of a check payable jointly to P etitioner and

P etitioner’s counsel of record, Ms. A my Senerth

.

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. 3

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler Special Master

3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the r ight to seek review. Vaccine Rule 11(a).