In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

CANDACE M. BERLIN, *

* No. 17-230V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: September 26, 2018

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

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

Nancy R. Meyers, Ward Black Law, Greensboro, NC, for Petitioner;

Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.

UNPUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS1

Candace Berlin brought a successful petition for compensation under the 

National Childhood Vaccine Compensation Program. She now sees an award for 

attorneys’ fees and costs. She is awarded $17,404.04.

 

1 The undersigned intends 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 access. Because this unpublished 

ruling contains a reasoned explanation for the action in this case, 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

* * *

Represented by Ms. Nancy Meyers, Ms. Berlin filed her petition for 

compensation on February 17, 2017. Ms. Berlin alleged that the influenza (“flu”) 

vaccine that she received on September 10, 2015, which is contained in the 

Vaccine Injury Table, 42 C.F.R. § 100.3(a), caused her to suffer injuries, including 

left shoulder myositis. The parties were able to informally resolve the case, 

agreeing to a joint stipulation on award of compensation that was then adopted. 

Decision, issued August 8, 2018.

On August 16, 2018, petitioner moved for reimbursement of attorneys’ fees 

and costs, requesting a total of $18,755.44 (representing $17,616.80 in attorneys’ 

fees and $1,138.64 in attorneys’ costs). Petitioner’s Application for Attorneys’ 

Fees and Costs (“Fees App.”) at 1. Pursuant to General Order No. 9, petitioner 

warrants that has not personally incurred any fees or costs related to the 

prosecution of her petition. Fees App. Ex. 2 at 2.

On August 20, 2018, respondent filed his response to the petitioner’s 

motion. In his response, respondent did not object to petitioner’s request. Resp’t’s 

Resp. at 2. Instead, the respondent stated that he is “satisfied that the statutory and 

other legal requirements for an award of attorneys’ fees and costs are met” and 

recommended that the undersigned exercise his discretion in determining “a 

reasonable award for attorneys’ fees and costs.” Id. at 2-3. On the same day, 

petitioner filed a reply concurring with respondent and asking that the undersigned 

use exercise his discretion and determine a reasonable award for fees and costs. 

Reply at 1.

This matter is now ripe for adjudication.

* * *

Because Ms. Berlin received compensation, she is entitled to an award of 

reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e). Thus, the question 

at bar is whether Ms. Berlin’s requested amount is reasonable. 

The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 

2008). First, a court determines an “initial estimate . . . by ‘multiplying the number 

of hours reasonably 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 
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may make an upward or downward departure from the initial calculation of the fee 

award based on specific findings. Id. at 1348.

A. Reasonable Hourly Rate

Ms. Berlin requests that her attorney, Ms. Nancy Meyers, be compensated 

$350 per hour for work performed in 2016-2017, and $375 per hour for work 

performed in 2018. Fees App. at 1. Ms. Berlin also requests that paralegals who 

performed work on this case be compensated at a rate of $145 per hour for all work 

performed. Id. As these rates are all in accordance with what the undersigned and 

other special masters have previously awarded to Ms. Meyers, I find them 

reasonable and will award them in full. See Drake v. Sec’y of Health & Human 

Servs., No. 16-732V, 2018 WL 4391065, at *2 (Fed. Cl. Spec. Mstr. Aug. 20, 

2018).

B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours. 

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). 

The Secretary did not directly challenge any of the requested hours as 

unreasonable.

In light of the Secretary’s lack of objection, the undersigned has reviewed

the fee application for its reasonableness. See Shea v. Sec’y of Health & Human 

Servs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 10, 

2015) (“special masters are not obligated to evaluate an attorney’s billing records 

on a line-by-line basis in making the reasonableness determination . . . and 

certainly need not do so when Respondent has not attempted to highlight any 

specific alleged inefficiencies”).

To facilitate the process of evaluating the reasonableness of an attorney's 

activities, in November 2004, the Office of Special Masters issued revised 

Guidelines for attorneys. The Guidelines state “counsel are advised to maintain 

detailed contemporaneous records of time and funds expended under the Program.” 

Office of Special Masters, Guidelines for Practice under the National Vaccine

Injury Compensation Program (Rev. Nov. 2004) at § XIV. Detailed (or stated 

another way, non-vague) contemporaneous records are the petitioner's 

responsibility and allow the Office of Special Masters to determine the 

reasonableness of attorneys' fees requests. See Avgoustis v. Shinseki, 639 F.3d 

1340, 1344-45 (Fed. Cir. 2011) (stating that requiring entries which permit 
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effective review of the fees is in accord with cases from the Federal Circuit and the 

Supreme Court).

Upon review of the submitted billing statement, the undersigned finds it 

reasonable to reduce Petitioner’s fees award due to the excessive amount of 

administrative work billed and the block billing from the paralegal assigned to this 

case. A total of 2.12 hours were billed by the paralegal for administrative tasks 

such as scanning documents, making copies, paying invoices, and mailing 

documents.2 Fees App. Ex. 1 at 17-24. It is well established that billing for clerical 

and other secretarial work is not permitted in the Vaccine Program. Rochester v. 

United States, 18 Cl. Ct. 379,387 (1989) (denying an award of fees for time billed 

by a secretary and finding that “[these] services . . . should be considered as normal 

overhead office costs included within the attorney’s fee rates”). This results in a 

reduction of $307.40.

Additionally, several of the paralegals billing entries present a textbook 

example of block billing. One entry of 5.1 hours, on March 12, 2018, reads in full:

Receipt of email from NRM re-Berlin Status report/records. Replied 

to same, reply from same. Call to Bond Clinic re- medical records for 

Berlin. Was told I would be called back. Email to NRM updating 

heron status of records. Call back from Bond clinic, stating that they 

would be able to email them to me. Sent test email to Bond clinic. 

Receipt of email from associate at Bond clinic (berlin) with test 

encrypted email. Created login and replied back to test email. 

Additional email to bond clinic, following-up on the record request. 

Reply from MR associate, stating that she could only send the pages 

30 at a time. Replied to same. Email from NRM, requesting an update 

on the status of the records, replied to same. Receipt of 22 emails 

from the MR associate at Bond Clinic (berlin) with medical records 

attached. Saved the records and prepared them for filing. Records 

attachment was too large, so was forced to separate them into eight 

parts. Filed with the Court. Prepared Berlin Status report and emailed 

 

2 Examples of these entries include, but are not limited to: 1/09/2017: 

Prepared payment to CIOX Health for the Watson Clinic records; 2/17/2017: 

Filing of Petition, Cover Sheet, and Exhibit List with US Court of Federal Claims; 

2/22/2017: Filing of Statement of Completion with Court; 7/24/2018: Mailed 

signed stipulation to Respondent via US mail. Fees App. Ex. 1 at 17-24.
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to NRM for her review. Receipt of email from NRM, asking me to 

exit the status report doc so that she could revise it before filing.

Fees App. Ex. 1 at 22. Beyond the fact that several of these tasks are administrative 

in nature and are thus not compensable, entries like this make it impossible for the 

undersigned to determine how much time the paralegal spent on each task and 

whether the amount of time spent on those tasks was reasonable. Similar examples 

of block billing occurred on August 2, 2017, January 9, 2018, February 9, 2018, 

and March 13, 2018. Id. at 21-24. 

Block billing, or billing large amounts of time without sufficient detail as to 

what tasks were performed, is clearly disfavored. Broekelschen v. Sec'y of Health 

& Human Servs., 07–137V, 2008 WL 5456319 (Fed. Cl. Spec. Mstr. Dec. 17, 

2008) (reducing petitioner's attorneys' fees for block billing), mot. for rev. denied, 

102 Fed. Cl. 719 (2011); see also Jeffries v. Sec'y of Health & Human Servs., 99–

670V, 2006 WL 3903710 (Fed Cl. Spec. Mstr. Dec. 15, 2006). The undersigned 

finds it appropriate to cut all of these entries by 50%, resulting in a reduction of 5.9 

hours and a monetary reduction of $855.50.

Finally, there are a handful of entries which simply state that the paralegal 

was copied on e-mails between Ms. Meyers and Petitioner. For example, on 

February 5, 2018, the billing entry reads “Copied on email from NRM to Traci 

Patton re- settlement. Reply from Candace to NRM. Reply from NRM to Candace. 

Reply from Traci to NRM. NRM replied to same.” Fees App. Ex. 1 at 21. Beyond 

merely being copied on e-mails being drafted by others, it is difficult to ascertain 

what value the paralegal added on this matter to warrant billing for it, or how this 

is simply not duplicative billing.3 Similar entries can be found on 12/07/2017, 

3/08/2018, 3/18/2018, and 3/19/2018. The undersigned will not compensate 

Petitioner for these entries, resulting in a reduction of $188.50.

Accordingly, in light of the aforementioned reductions, Petitioner is entitled 

to compensation for attorneys’ fees in the amount of $16,265.40.

 

3 Ms. Meyers’ billing records indicate that she billed time on February 7 and 

8 in 2018 exchanging e-mails with respondent’s counsel and Petitioner regarding 

settlement. Fees App. Ex. 1 at 13. Thus, although the dates are not identical, the 

undersigned can infer that these billing entries reflect the same e-mails.
6

C. Costs Incurred by Ward Black Law

The fees application also asks for reimbursement in the amount of $1,138.64 

in for costs incurred by Ward Black Law. Fees App. at 1. Like attorneys’ fees, a 

request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health 

& Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 

1994). 

Upon review, I find these requested costs to all be reasonable. These costs, 

in totality, are $736.80 for medical records, $1.84 for postage, and $400.00 for the 

filing fee. Fees App. Ex. 1 at 2. These are all routine costs in Vaccine Program 

cases, and Petitioner has provided adequate documentation of these costs. 

Accordingly, I will compensate Petitioner in full for all requested costs.

D. Conclusion

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

42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $17,404.04 (representing 

$16,265.40 in attorneys’ fees and $1,138.64 in costs) as a lump sum in the form of 

a check jointly payable to petitioner and her counsel, Ms. Nancy Meyers, Esq.

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 

decision.4

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

 

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment 

by filing a joint notice renouncing their right to seek review.