# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: March 5, 2021

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

MARK FERRARA

, * No. 1 7

- 1601 V

* Special Master Sanders Petitioner, *

* UNPUBLISHED

v. *

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *

* Respondent. *

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

Donald P. Edwards

, Law Office of Donald P. Edwards, Atlanta, GA

, for Petitioner ; Althea W. Davis , United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

On October 20, 2017

, Mark Ferrara (“Petitioner”) filed a petition for compensation pursuant to the National V accine Injury Compensation Program

. 2 42 U.S.C. §300aa

- 10 et seq. (2012). Petitioner alleged that he developed a shoulder injury related to vaccine administration as a result of the influenza vaccination he received on October 20, 2014

. On October 7 , 20 19

, Petitioner filed an unopposed motion to voluntarily dismiss his petition , and on June 24 , 2020, the undersigned issued her decision dismissing the petition for insufficient proof. ECF No. 4 8

.

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This

means the R uling 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 ma terial from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims'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. Hereinafter, for ease of citation, all “§” references to the Vacci ne Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).On November 6 , 2020 , Petitioner filed a motion for attorney s’ fees and costs. ECF No. 52

(“Fees App. ”). Petitioner requests total final attorney s’ fee s and costs in the amount of $ 13,171.22

, representing $ 12,295.20 in attorney s’ fees and $ 876.02 in attorney s’ costs. Fees App. at 18

- 19

. Respondent responded to the motion on November 20 , 2020

, requesting that the undersigned determine a reasonable award of attorneys’’ fees and costs if “the Special Master is satisfied that this case was filed and proceeded with a reasonable basis.” Resp’t’s Resp. at 3. ECF No. 53

. Petitioner did not file a repl y thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys ’ fees and costs. § 15(e). The Federal Circuit has approved the lodestar approach to determine reasonabl e attorneys ’ fees and

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs. , 515 F.3d 1343, 1348 (Fed. Cir. 2008). This is a two

- step process. Id. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours reaso nably expended on the litigation times a reasonable hourly

rate.’” Id. at 1347

– 48 (quoting Blum v. Stenson , 465 U.S. 886, 888 (1984)). Second, the court may make an upward or downward departure from the initial calculation of the fee award based on specifi c findings. Id. at 1348

.

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 records 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). Such ap plications, however, should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart , 461 U.S. 424, 434 (1983)).

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

Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs for a petition that does not result in an award of compensat ion but was filed in good faith and supported by a reasonable basis. § 300aa

– 15(e)(1). Here, although the petition was eventually dismissed, the undersigned does not doubt that the claim was brought in a good faith belief that petitioner’s vaccination cont ributed to his injury, and the undersigned find that the claim had a reasonable basis to proceed for as long as it did. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs.

a

. Hourly RateThe decision in McCulloch provides a framework for consideration of appropriate ranges

for attorneys’ fees based upon the experience o f the practicing attorney. McCulloch v. Sec’y of

Health & Human Servs. , No. 09

- 293V, 2015 WL 5634323, at *19 (Fed. Cl. Spe c. Mstr. Sept. 1, 2015), motion for recons. denied , 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys ’ Forum Hourly Rate Fee

Schedules for 2015

– 2016, 2017, 2018, 2019 , and 2020 can be accessed online

. 3

Petitioner requests the following hourly rates for the work of h is counsel , Mr. Donald Edwards: $440.00 per hour for work performed in 2017, $455.00 per hour for work performed in 2018, $464.00 per hour for work performed in 2019, and $484.00 per hour for work performed

in 2020. The hourly rate s are consistent with what Mr. Edwards has previously been awarded for his Vaccine Program work, and t he undersigned finds them to be reasonable for the work performed herein.

b . Reasonable Number of Hours

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 th eir fee requests hours that are

“excessive , redundant, or otherwise unnecessary.” Saxton, 3 F .3 d at 1521 (quoting Hensley v.

Eckerhar t

, 461 U.S. 424, 434 (1983)).

Upon review, the undersigned finds the overall hours billed to be reasonable. Counsel has

pr ovided sufficiently detailed descriptions for the tasks performed, and upon review, the undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final attorneys’ fees in the amount of $ 12,295.20

.

c. Attorney 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). Petitioner requests

a total of $ 876.02 in attorneys’ costs, comprised of acquiring medical records, the Court’s filing fee, and subpoena costs. Fees App. Es. 2 at 6

- 7. These costs appear reasonable and shall be fully

re imbursed.

II. Conclusion

In accordance with the Vaccine Act , 42 U.S.C. §15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and

costs is reasonable. Based on the above analys is, the undersigned finds that it is reasonable to compensate Petitioner and h is counsel as follows:

Attorneys’ Fees Requested $ 12,295.20 (Reduction to Fees)

-

3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914

. The hourly rates contained within the schedules are updated from the decision in McCulloch , 2015 WL 5634323.Total Attorneys’ Fees Awarded $ 12,295.20

Attorneys’ Costs Requested $ 876.02 (Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 876.02

Total Attorneys’ Fees and Costs $ 13,171.22

Accordingly, the undersigned awards a lump sum in the amount of $ 13,171.22

, representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner and Petitioner’s counsel, M r

. Donald Edwards

.

I n the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

c ourt is directed to enter judgment herewith. 4

IT IS SO ORDERED

.

s/ Herbrina D. Sanders

Herbrina D. Sanders Special Master

4 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.