# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 14-987V Filed: July 15, 2016

UNPUBLISHED

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * VIVIAN REINARD, *

* Petitioner, *

v. * * Attorneys’ Fees and Costs;

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

* Respondent. *

*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner. Althea Walker Davis, U.S. Department of Justice, Washingt on, DC, for respondent.

DECISION ON ATTORNE YS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

On October 15, 2014, petit ioner filed a petition for compensation under the National Vaccine Injury Compensat ion Program, 42 U.S.C. §300aa-10, et seq.

, 2 (the “Vaccine Act”). Petitioner a lleged that she suffered Guillain-Barre Syndrome (“GBS”) and Chronic Inflammatory Demyelinating Po lyneuropathy (“CIDP”) as a result of her November 3, 2011 influenza (“flu) vaccine. On May 9, 2016, the undersigned issued a decision awarding compensation to petitioner based on the parti es’ Stipulation. (ECF No. 38).

On May 20, 2016, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 42). Petitioner requests attorneys’ fees in the amount of $51,275.50 and attorneys’

costs in the amount of $8,100.40 for a total am ount of $59,375.90. Id. at 2. In

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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 accordance with General Order #9, petitioner’s counsel represents that petitioner incurred no out-of-pocket expenses. Id.

On June 2, 2016, respondent filed a response to petitioner’s motion. (ECF No. 44). Respondent argues that “[n]either 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 am ount for fees and costs in the present case would fall bet ween $25,000.00 and $30,000. 00” but provides no basis or explanation for how she a rrived at this proposed range. Id. at 3.

On June 9, 2016, petitioner f iled a reply. (ECF No. 45). Petitioner argues that respondent has provided “no precise objection ” but only “a self-serving estimation of what the [r]espondent believes the range for fees and costs in this case should be.” Id.

at 2-3.

The undersigned has reviewed the billing records submitted with petitioner’s request and finds a reduction in the amount of fees to be awarded appropriate for

several reasons.

First, petitioner requests compensation for an excessive number of billing entries for paralegal work at an attorney rate. 3 Attorneys may be compensated for paralegallevel work, but at a rate that is compar able to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec’y of Health & Human Servs ., No. XX-XXXV, 2010 WL 529425, at *9- 10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins , 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human Servs. , No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. HHS. , 99-382V, 2009 WL 3319818, *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. HHS. , No. 99-535, 2008 WL 5747914, *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). The undersigned finds 28 hours of petitioner’s counsel’s billed time represents paralegal work, and not attorney work, and reduces petitioner’s attorneys’ fees request by $3,640.00. 4

Second, petitioner requests compensation for some clerical and administrative work which is not compensable in the Va ccine Program as it is normally considered

3 For example: “Prepare medical records request to Doylestown Hospital 8/19/2014 .4[hours];” “Review correspondence from Doylestown Hospital re: record s 9/24/2014 .2[hours];” and “Prepare exhibits 1-7 for filing (nearly 7000 pages) 1/16/2015 2.5[hours].” (ECF No. 42 at 4, 7). The undersigned notes that these are just a few examples of a large number of billing en tries in this claim which reflect paralegal work is billed at the attorney rate.

4 This amount represents the difference between petit ioner’s counsel’s rate and petitioner’s counsel’s paralegal’s rate.3 administrative overhead. 5 See, e.g. Rochester v. United States , 18 Cl. Ct. 379, 387 (1989) (legal assistant services that were “prima rily of a secretarial and clerical nature . .

. should be considered as normal overhead office costs included with the attorneys’ fee rates”); Mostovoy , 2016 WL 720969, at *5. The under signed reduces petitioner’s counsel’s fees’ request by 5.4 hours, or $1,377.00, for attorney time billed for

administrative tasks.

Finally, the undersigned notes t hat petitioner’s counsel has billed for travel at his full hourly rate. 6 It is well established that it is r easonable to compensate travel time at 50% of counsel’s hourly rate when the attorn ey is not performing work while travelling. See, e.g. Rodriguez v. Sec’y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. July 27, 2009); Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *6 (Fed. Cl. Spec. Mstr. July 13, 2007); Scoutto v. Sec’y of Health & Human Servs. , No. 90-3576V, 1997 WL 588954, at *5 (Fed. Cl. Spec. Mstr. Sept. 5, 1997). Acco rdingly, the undersigned reduces petitioner’s counsel’s fees’ request by $497.25, representing a 50% reduc tion of the 3.9 hours, or $994.50, billed by petitioner’s counse l for time spent traveling.

Based upon the above analysis, a revi ew of the timesheets, and the undersigned’s experience, petit ioner’s application for attorneys’ fees is reduced by $5,514.25. The undersigned finds that the proposed attorney and paralegal rates, as well as the proposed costs, are entirely reasonable.

Petitioner also requests additional attor neys’ fees in t he amount of $255 (one hour of time) for preparing the reply. (E CF No. 45 at 4). T he undersigned finds the request for additional hour s pent preparing the reply to be reasonable and awards the full amount requested for preparat ion of the reply brief. T hus, the total amount awarded for attorneys’ fees and costs is $ 54,116.65

. 7

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 motion for atto rneys’ fees and costs.

5 For example: “Telephone call with Minutemen press re: scan 9/29/2014 .3[hours];” “Review correspondence with Doylestown Medical Associates re: invoice 10/29/2014 .2[hours];” and “Prepare reply correspondence re: invoice 8/4/2015 .2 [hours].” (ECF No. 42 at 4-5, 9).

6 “Drive to client’s house for meeting 8/18/2014 1. 4[hours];” “Drive from client meeting 8/18/2014 1.4[hours];” and “Pick up reco rds 10/6/2014 1.1[hours].” (ECF No. 42 at 4-5).

7 The undersigned notes that this award while larger than the average award for fees and costs in an SPU claim is entirely reasonable based on the facts and procedural history of this claim, which includes approximately 9,000 pages of medical records.4 Accordingly, the undersigned awards the total of $54,116.65 8 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel,

Maximillian Muller.

The clerk of the court shall enter judgment in accordance herewith. 9

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

8 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 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).

9 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.