# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16–602V Filed: August 31, 2017 Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * * SHEILA R. YOUNG, *

* Petitioner, *

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

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * * Matthew F. Belanger, Faraci Lange, LLP, Rochester, NY, for petitioner. Robert Paul Coleman, III, U. S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNE YS’ FEES AND COSTS 1

Dorsey , Chief Special Master:

On May 23, 2016, Sheila Young (“petit ioner”) filed a petiti on pursuant to the National Vaccine Injury Compensat ion Program, 42 U.S.C. §300aa-10, et seq. , (the “Vaccine Act”). 2 Petitioner alleged that she suffe red Guillain-Barre Syndrome (“GBS”) as a result of receiving an influenza (“flu”) vaccine on November 5, 2014. (ECF No. 1). The case was assigned to the Special Proce ssing Unit (“SPU”) of the Office of Special

Masters.

On April 14, 2017, the undersigned i ssued a decision based on the parties’ stipulation, awarding petiti oner $190,000.00. (ECF No. 25). On May 9, 2017, petitioner filed a Motion for Attorneys’ fees and cost s. (ECF No. 31). Petitioner requests

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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 $26,286.25 in attorneys’ fees and $1,844.09 in costs, for a total award of $28,130.34. 3 (ECF No. 31). The Motion includes time and expense sheets, a General Order #9 statement that petiti oner did not incur any out-of-pocket expenses, details regarding petitioner’s attorneys’ costs, and a Declaration in Support of Application for Attorneys’ Fees (“Declaration”) from petitioner’s c ounsel, Matthew Belanger , providing background

information on himself and the members of hi s staff who worked on the case. (ECF
Nos. 31-1, 31-2, 31-3, and 31-4).

Respondent filed a response to petitioner’s application on June 1, 2017. (ECF No. 33). Respondent states 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 furt her notes that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” ( Id. at 2.) As such, respondent “res pectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable aw ard for attorneys’ fees and costs.” ( Id. at 3.) Petitioner filed no reply. On July 5, 2017 petitioner filed the required supporting docum entation for her counsel’s reques ted costs. (ECF No. 35).

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 pa ralegal work at an attorney rate. It is well established that attorneys may be co mpensated for paralegal-level work, but at a rate that is comparable 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).

On May 19, 2016 Mr. Belanger billed 1. 3 hours to, in addition to other tasks, “[p]repare Exhibits for Filing, paginate Petition after exhibits paginated and finalize all

3 Petitioner’s Motion indicates a total request of $28,170.33 in fees and costs. (ECF No. 31 at 1). However, $26,286.25 (petitioner’s f ee request) + $1,844.09 (petitioner’s costs request) = $28,130.34.3 initial filings.” 4 (ECF No. 31-2 at 2). The undersi gned finds this entry represents attorney time billed for paralegal tasks 5 and reduces petitioner’s fee award by $325.00. 6

Second, petitioner’s counsel billed for wo rk performed by both attorney Kathryn Bruns and paralegal Karan Sharak. The under signed notes that attorneys’ fees are awarded for hours reasonably expended, and counsel should not include hours that are “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart , 103 S. Ct. 1933, 1939-40 (1983). On May 25, 2016, Ka ren Sharak billed 1.7 hours for the following tasks: “[p]repared and e-filed Aff, Exhibits 2-10, Statement of Completion.” (ECF No. 31-2 at 2). On Ma y 26, 2016, Ms. Bruns billed 1. 2 hours as follows: “[w]ork with K. Sharak on drafting and filing Notices of Filing, Exhibit List and Statement of Completion. Supervise e-filing of same and all Exhibits.” 7 ( Id. ) The work performed by Ms. Bruns is duplicative of t hat performed by Ms. Sharak. See

, e.g. Turkupolis v. Sec’y

of Health & Human Servs. , No. 10-351V, 2015 WL 393343, at *6 (Fed. Cl. Spec. Mstr. Jan. 9, 2015) (petitioner’s f ees reduced “for duplic ative meetings, editing, and review”); Duncan v. Sec’y of Health & Human Servs. , No. 99-455V, 2008 WL 2465811, at *4 (Fed. Cl. Spec. Mstr. May 30, 2008) (special master r educed the amount of compensable attorney time for work that was duplicated by senior and junior attorney). Accordingly, the undersigned redu ces petitioner’s fee request by $300 for the 1.2 hours of time duplicatively billed by Ms. Br uns. The undersigned further notes these duplicative time entries describe tasks that are paralegal in nature.

Finally and most significantly, petitioner ’s counsel has billed for time spent researching the Vaccine Program and training staff. Recovery of attorneys’ fees and costs is limited by the Vaccine Act to r easonable fees and costs “incurred in any proceeding” on a vaccine petition. §15(e)(1). Time spent learning about the Vaccine

4 Ms. Bruns’ name and Mr. Belanger’s initials are both associated with this entry making it unclear who performed the May 19, 2016 tasks. (ECF No. 31-2 at 2). However, based on a review of the total number of hours billed by counsel it appears this time was billed by Mr. Belanger at his $350.00 an hour rate. (ECF No. 31-2 at 4).

5 The undersigned notes that this entry also includes time spent by counsel “review[ing] new medical records” which is appropriate to bill at an attorney rate. (ECF No. 31-2 at 2). However, as the time spent on the various tasks is not separated and both paralegal and attorney work is detailed the billed time is reimbursed at the paralegal rate.

The undersigned notes that grouping multiple activiti es into single time entries is frowned upon and makes a line-by-line analysis nearly impossible. See, e.g. Riggins v. Sec’y of Health & Human Servs.

, 99-38V, 2009 WL 3319818, *23-24 (Fed. Cl. Spec. Ms tr. June 15, 2009). Attorneys are advised that “[e]ach task should have its own line entry indicating the amount of time spent on that task” and that “[l]umping together several unrelated tasks in the same time entry frustrates t he court’s ability to assess the reasonableness of the request.” Guidelines for Practice Under the National Vaccine Injury Compensation Program at 68 (available on the court’s website at http://www.cofc.uscourts.gov/sites/default/file s/GUIDELINES-FOR-PRACTICE-4212016.pdf).

6 This reduction is calculated as follows: 1.3 hours x $350.00 (Mr. Belanger’s rate) = $455.00. 1.3 hours x $100 (petitioner’s counsel’s paralegal rate) = $130.00. $455.00 - $130.00 = $325.00.

7 The undersigned further finds that time spent supervising employees is not compensable.4 Program is not compensable. See, e.g., Barry v. Sec’y of Health & Human Servs. , No. 12–039V, 2016 WL 6835542 at *6 (Fed. Cl. S pec. Mstr. Oct. 25, 2016) (reducing petitioner’s fee request for time spent re searching the Vaccine Program and reviewing petition requirements); Matthews v. Sec’y of Health & Human Servs. , No. 14–1111V, 2016 WL 2853910 at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016); Calise v. Sec’y of Health &

Human Servs. , No. 08–865V, 2011 WL 2444810 at *8 (Fed. Cl. Spec. Mstr. June 13, 2011) (noting that “basic education [is] not compensable under the Program”). The rationale for barring compensation for Progr am-related research is grounded in the notion that “an inexperienced attorney may not ethically bill his client to learn about an

area of the law in which he is unf amiliar. If an attorney may not bill his client for [a] task, the attorney may also not bill the Program for [the] task.” Carter v. Sec’y of Heatlh &

Human Servs. , No. 04–1500V, 2007 WL 2241877 at *5 (F ed. Cl. Spec. Mstr. July 13, 2007).

On May 20, 2016, Ms. Bruns billed 1.5 hours as follows: “[r]eview procedures for filing new petition with Court. Detailed email to BG regarding same. Discuss with MFB. Follow up meeting with BG regarding same. Review and edit Notice of Filing and

Exhibit Lists.” 8 (ECF No. 31-2 at 2). Because time spent researching or learning about the Vaccine Program is not compensable, the undersigned reduces petitioner’s fee request by $375.00. 9

Additionally, on May 20, 2016 Ms. Bruns b illed two hours of time to “[w]ork with KS on how to prepare exhibits for filing. Tr ain regarding same. Review all exhibits.” 10 (ECF No. 31-2 at 2). As counsel may not bill for time spent researching or learning about the Vaccine Program, it follows that tr aining staff is likewise not compensable. Accordingly, the undersigned reduces petitioner’s fee request by $500.00 for this time. 11

For the reasons discussed above t he undersigned reduces petitioner’s fee request by a total of $1,500.00. 12

Petitioner requests reimbursement for attor ney costs in the am ount of $1,844.09. (ECF No. 31) After reviewing petitioner’s invoices, the undersigned finds no cause to reduce petitioner’s request and awards the full amount sought. (ECF No. 35).

8 The undersigned notes that this entry contains both compensable and non compensable time, however as discussed supra at footnote 5 grouping multiple tasks into a single time entry frustrates the court’s ability to assess reasonableness. Accordingly, the un dersigned reduces the total request of 1.5 hours.

9 This reduction is calculated as follows: $250.00 (Ms. Bruns’ hourly rate) x 1.5 hours = $375.00.

10 Ms. Sharak’s name and Ms. Bruns’ initials are asso ciated with this entry. (ECF No. 31-2 at 2). However, based on a review of the total number of hours billed by each, and th e fact that the entry indicates that the biller was working with “KS,” it is evident this time was billed by Ms. Bruns at her $250.00 an hour rate. (ECF No. 31-2 at 2, 4).

11 This reduction is calculated as follows: $250.00 (Ms. Bruns’ hourly rate) x 2 hours = $500.00.

12 $325.00 (reduction for paralegal time) +$300.00 (red uction for duplicative billing) + $375.00 + $500.00 (reductions for time spent learning/researching/traini ng in regard to the Vaccine Program) = $1,500.00.5 The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §15(e). In sum, the under signed finds that petitioner s are entitled to reasonable attorneys’ fees and costs as follows:

Requested attorneys’ fees: $26,286.25

Reductions -1,500.00 Adjusted Fees Total: $24,786.25

Requested attorneys’ costs: $1,844.09

Reductions - 0.00 Adjusted Costs Total: + $1.844.09

Total Attorneys’ Fees and Costs Awarded: $26,630.34

Accordingly, the undersigned awards a total of $26,630.34, 13 representing reimbursement for all attorneys’ fees and costs, in the form of a check jointly payable to petitioner and petition er’s counsel, Matthew Belanger.

The clerk of the court is directed to enter judgment in accordance with this

decision. 14

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

13 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).

14 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.