# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 0650 V

Filed: June 22, 2018

UNPUBLISHED

DONNA T. HYATT

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Attorneys’ Fees and Costs

Shealene Priscilla Wasserman, Muller Brazil, LLP, Dresher, PA , for petitioner. Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

Dorsey

, Chief Special Master:

On May 17, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et seq.

, 2 (the “Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to vaccine administration (“SIRVA”) as a result of her September 14, 2015 influenza (“flu”)

vaccination. Petition at 1. On May 15, 2018, the undersigned issued a decision awarding compensation to petitioner based on the respondent’s proffer

. (ECF No. 47 ).

On June 12, 2018 , petitioner filed a motion for attorneys’ fees and costs. (ECF

No. 51 ). Petitioner requests attorneys’ fees in the amount of $ 23,314.00 and attorneys’ costs in the amount of $ 1,512.13

. Id. at 2

. In accordance with General Order #9,

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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 wi th

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 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 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 petitioner's counsel represents that petitioner incurred no out

- of

- pocket expenses. Id. at

2. Thus, the total amount requested is $ 24,826.13

.

On June 13, 2018, respondent filed a response to petitioner’s motion. (ECF No.

52 ). R espondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorney s’ fees and costs are met in

this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees

and costs.” Id. at 3.

Petitioner has filed no reply.

The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates with the following exceptions. D ue to attorney C. Clark Hodgson, III‘s inexperience in the Vaccine Program, the undersigned does find cause to reduce his hourly rate from the requested $225 an hour to $200 an hour. Therefore, attorneys’ fees are reduced by $ 55.00

. 3

In regards to attor ney Shealene P. Wasserman, a rate of $225 per hour was awarded for work performed in 2017. Ms. Wasserman’s requested rate of $250 per hour for work in 2018 is outside the experience range for an attorney with 3 years’ experience. Under the Court’s Fee Schedule, an attorney in the range of 1

- 4 years’ experience is entitled to hourly rates between $159
- $238 for work performed in 2018. Her increase for 2018, based on the Producer Price Index for the “Office of Lawyers” (PPI

- OL), provided by the Department of Labor Bureau of Labor Statistics, would result in a rate $233 per hour, which is a more appropriate rate given the undersigned’s experience and analysis of the McCulloch factors as applied to Ms. Wasserman.

Therefore

, the undersigned reduces the fee reque st by $ 185 .30

. 4

It is clearly established that secretarial work “should be considered as normal overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S. , 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs.

, No. 08

- 579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program. ” Mostovoy

, No. 02

- 10V, 2016 WL 720969, at *5 (citing Rochester , 18 Cl. Ct. at 387). On May 16, 2018, 0.30 was billed to the program to “Mail letter to client re: Damages award”. (ECF No. 51 at 11).

3 This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed. ($ 225 - $ 200 = $ 25 * 2.20 = $ 55.00 ).

4 This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed. ($250
- $233 = $17 * 1 0.9 = $1 8 5.30).3 Mailing documents is considered administrative overhead and the undersigned reduces the fee request by $37.50

.

The full amount of costs sought, $1, 512.13, is awarded.

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

GRANTS petitioner’s motion for attorneys’ fees and costs.

Accordingly

, the undersigned awards the total of $ 24,548. 33 5 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel

Shealene Priscilla Wasserman

.

T he clerk of the court shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

5 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all

char ges 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. Se e generally Beck v. Sec’y of Health & Human Servs.

, 924 F.2d 1029 (Fed. Cir.1991).

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