# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20

- 0199 V (not to be published)

NICOLE MATLEY

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: March 2 9 , 2022

Special Processing Unit (SPU); Attorney’s Fees and Costs

Glen Howard Sturtevant, Jr., Rawls Law Group (Richmond), Richmond, VA , for P etitioner.

Lara Ann Englund , U.S. Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY ’ S FEES AND COSTS 1

On February 25, 2020

, Nicole Matley 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 shoulder injury related to vaccine
administration as a result of an influenza vaccine that was administered to her on December 17, 2018

. ( Petition at 1 ). On January 26, 2022 , a decision was issued awarding compensation to Petitioner based on the parties’ stipulation

. (ECF No. 40 )

.

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means the D ecision 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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subpara graph of 42 U.S.C. § 300aa (2012 ).2 Petitioner has now filed a motion for attorney’s fees and costs, dated February 2,
2022 (ECF No. 44 ) , requesting a total award of $21,543.29 (representing $20,006.24 in fees and $1,537.05 in costs). In accordance with General Order No. 9, Petitioner file d a signed statement indicating that she incurred no out

- of

- pocket expenses. (ECF No. 44

- 3 )

. Respondent reacted to the motion on February 3, 2022, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs a re met in this case, but deferring resolution of the amount to be awarded at the Court’s discretion. (ECF No. 45). Petitioner did not file a reply thereafter.

I have reviewed the billing records submitted with P etitioner’s request s and find a reduction in the amount of fees to be awarded appropriate

, for the reason listed below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs

. Sect ion 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Hum. Servs. , 85 Fed. Cl. 313, 316

- 18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs. , 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Ecker hart , 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee re quest sua sponte , apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs. , 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line

- by

- line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.
Servs. , 102 Fed. Cl. 719, 729 (2011).

The p etitioner “bears the burden of establishing the hours expended , the rates charged, and the expenses incu rred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee su bmission.” Hensley

, 461 U.S. at 434.3 ATTORNEY FEES

Petitioner requests compensation for attorney Glen Sturtevant at the following

rates : $339 per hour for 2019; $353 per hour for 2020; $372 per hour for 2021 ; and $392 per hour for 2022. (ECF No. 44 at 3) . T he requested rates for time billed between 201 9

- 21 are reasonable and consistent with what has previously been awarded for work he has performed for other petitioners, and the requested increase for 2022 wor k is also acceptable.

In addition, Petitioner requests the rate of $182 per hour for time billed by paralegal Emily Brooks

. (ECF No 44

- 2 at 15 ). But t his r equested rate exceed s the Vaccine Program’s published range for paralegals in 2022

. 3 I shall therefore reduce the requested rates to $ 177 per hour for time billed 2022

. This reduce s the fees to be awarded by the
amount of $ 23. 5 0

. 4

ATTORNEY COSTS

Petitioner requests $1,537.05 in overall costs. (ECF No. 44 at 3) . This amount is comprised of obtaining medical records, shipping cost s and the Court’s filing fee. I have reviewed all of the requested costs and find them to be reasonable and shall award them
in full.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney ’ s fees and costs

. Section 15(e). Accordingly, I hereby GRANT IN PART Petitioner’s Motion for attorney ’ s fees and
costs. I award a total of $ 21,519.79 (representing $ 19,982.74 in fees and $ 1,537.05 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s

counsel

. In the absence of a timely

- filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this dec ision. 5

3 These rates are derived from the application of the OSM Attorneys’ Forum Hourly Rate Schedules and are available on the U.S. Court of Federal Claims website at www.cofc.uscourts.gov/node/2914

.

4 This amount is consisting of $18 2

- $177 = $5 x 4. 7 hrs = $ 23. 5 0.

5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.4 IT IS SO ORDERED.

s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master