# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: August 3, 2017

* * * * * * * * * * * * * * R.H., by her parents and natural guardians, * No. 15-726V
JASMATIE and RYON HARDEEN, *

*
P etitioners, * Special Master Sanders

*
v. * * Attorneys’ Fee s and Costs; SECRETARY OF HEALTH * Reasonable Hourly Rate.
AND HUMAN S ERVICES, *
* Responde nt. *
* * * * * * * * * * * * * *

Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioners. Linda S. Renzi, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On July 13, 2015, Jasmatie and Ryon Hardeen (“Petitioners”) filed a petition on
behalf of their daughter, R.H., for compensation in the National Vaccine Injury Compensa tion Program [“the Program”]. 2 Decision 1, ECF No. 52. They alleg ed that the Diphtheria-Tetanus-acellular Pertussis (“DTaP”), inactivated polio (“IPV”), haemophilus influenza (“Hib”), pneumococcal conjugate (“PCV7”), and Rotavirus vaccinations R.H. received on January 16, 2014 caused her to suffer epilepsy and developm ental delays. Id. On March 14, 2017, the undersigned issued a decision dismissing their petition for insufficient proof. Id.

1 This decision shall be posted 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), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees that the identified material fits within the requirements of that provision, such material will be deleted 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 Peti tioner s filed a motion for att orneys’ fees on June 21, 2017. Mot. Att’ys’ Fees,
ECF No. 55. P etitioners requested $30,424.00 for a ttorneys’ fees and $1,777.12 in costs, totaling $32,201.12. Id. at 1. Respondent filed a Response on July 18, 2017. Resp’t’s
Re sp., ECF No. 56. He indicated that “[t]o the extent the Special Master is treating [P]eti tioners’ request for attorneys’ fees and costs as a motion that requires a response from [R ]espondent . . . Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “rec ommend[ed]” for the undersigned to “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3. Petitioners did not file a reply. See Docket Rep.

For the reasons discussed below, the undersigned awards Petitioners’ Motion for Attorneys ’ Fees and Costs in part.

I. Reasonab le 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 reasonable

attorne ys’ 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. I d. First, a
court deter

mines an “initial estimate . . . by ‘multiplying the numbers of hours reasonably

expe nded on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (quoting Blum
v. Stenson , 465 U.S. 886, 888 (1984)). Sec ond, the court may make an upward or downward departure from the initial calculation of the fee award based on specific 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).

The decision in McCulloch provides a framework for consideration of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of Health & Human Servs. , No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied , 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). In McCulloch , Special Master Gowen held that an attorney with twenty or more years of experience has a reasonable hourly rate between $350 and $425. Id. The Court recently updated the McC ulloch rates for 2015-2016 3 and

3 The 2015-2016 Fee Schedule can be accessed at:http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-FeeSche dule2015-2016.pdf. The hourly rates contained in the 2015-2016 Fee Schedule are3

2017. 4 For attorneys with twenty to thirty years of experience, the reasonable hourly fee range for work performed in 2017 is $358 to $424. The revised rate schedule also contains increased rates for attorneys with more than thirty-one years of experience.

a. Hourly Rates

The first step of the lodestar approach involves determining an estimate by calculating “the numbers of hours reasonably expended on the litigation times a

reasona ble hourly rate.” Avera , 515 F.3d at 1347-48 (quotation omitted). Petitioners’ counsel, Mr. Clifford Shoemaker requested an hourly rate of $415 for his work performed in 2015, $430 for 2016, and $446 for 2017. Mot. Att’ys’ Fees 4-12. Another

attorne y in Mr. Shoemaker’s firm, Ms. Sabrina Knickelbein, requested hourly rates of $350 for 2015, $365 for 2016, and $378 for 2017. Id. at 9-21.

Mr. Shoemaker’s requested rates for 2015 and 2016 are within the ranges provided in the 2015-16 Office of Special Masters’ Attorneys’ Forum Hourly Rate Fee
Sc hedule 5 and have been found reasonable. See, e.g.

, Bookey by Rosenbloom v. Sec’y of
Health & Human Servs. , No. 13-26V, 2017 WL 2544892 (Fed. Cl. Spec. Mstr. May 18, 2017); Mikkelson v. Sec’y of Health & Human Servs. , No. 15-867V, 2016 WL 6803786 (Fed. Cl. Spec. Mstr. Oct. 3, 2016). Ms. Knickelbein’s rate requests are like wise reasonable under both the 2015-2016 and 2017 Fee Schedules, and her requests have
been fou nd reasonable. Bookey v. Sec’y of Health & Human Servs. , No. 13-026, 2017 WL 2544892, at *2 (Fed. Cl. Spec. Mstr. May 18, 2017). Consequently, the undersigned finds that Ms. Knickelbein’s requested rates and Mr. Shoemaker’s 2015 and 2016 rates
are reasonable.

However, Mr. Shoemaker’s rate for 2017 requires some adjustment. Petitioner s request that Mr. Shoemaker receive $446 an hour for work performed in 2017. Mot. Att’ys’ Fees 11-12. Mr. Shoemaker has been practicing law for over 40 years and has significa nt experience in the Vaccine Program. However, the 2017 Fee Schedule provides a maximum hourly rate of $440 for attorneys with more than thirty-one years of experience. 6 Therefore, the undersigned sets Mr. Shoemaker’s reasonable hourly rate for 2017 at $440. The resulting deduction totals $49.80.

updated from the decision in McCulloch v. Secretary of Health and Human Services

. 2015 WL 5634323, at *19.

4 The 2017 Fee Schedule can be accessed at: http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum -Rate-Fee-Schedule2017.pdf. The hourly rates contained in the 2017 Fee Schedule are updated from the
decision McCulloch v. Secretary of Health and Human Services . 2015 WL 5634323, at *19.

5 See supra note 3.

6 See supra note 4.4 b. Hours E xpended

The second step in Avera is for the Court to make an upward or downward
modifica tion based upon specific findings. 515 F.3d at 1348. The undersigned finds no

unnece ssary or unreasonable entries in Mr. Shoemaker’s billing records, and therefore
finds that the hours ex pended are reasonable and should be awarded in full. See generall y Mot. Att’ys’ Fees.

c. Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. C l. 29, 34 (1992). Petitioners’ costs consist of the collecting and printing of medical records. Mot. Att’ys’ Fees 21-22. A review of these costs show them to be reasonable, and the undersigned awards them in
full.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned finds that Petitioners are entitled to attorneys’ fees and costs. Accor dingly, the undersigned hereby awards the amount of $32,151.32, 7 in the form of a check made payable jointly to Petitioners and Petitioners’ counsel, Clifford J. Shoemaker,
of S hoemaker, Gentry & Knickelbein.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accordance herewith. 8

IT IS SO ORDERED.

s/Herbrina D. Sanders
Herbrina D. Sanders Special Master

7 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 costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging
or colle cting 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).

8 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine Rule 11(a).