# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: June 23 , 2020

* * * * * * * * * * * * * * UNPUBLISHED

GARY FOSTER

, *

*
Petitioner, * No. 1 7

- 1502 V

* Special Master Oler

v. *

* Attorneys ’ Fees and Costs

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Shealene P. Mancuso

, Muller Brazil, LLP, Dresher, PA

, for P etitioner. Colleen C. Hartley , United States Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY S ’ FEES AND COSTS 1

On October 1 2 , 2017, Gary Foster (“ P etitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program. 2 42 U.S .C. §§ 300aa

- 10 to

- 34 (2012).

Petitioner alleged that he suffered right shoulder injuries, including Parsonage Turner Syndrome, as a result of receiving an influenza (“flu”) vaccination on or about August 31 , 201 6

. See Petition

, ECF No. 1

. On January 21, 2020, the parties filed a stipulation, which the undersigned adopted as her Decision awarding compensation on January 3 0, 2020. ECF No. 51.

On March 13 , 2020

, P etitioner filed an application for final attor neys ’ fees and costs. ECF

No. 56 (“Fees App.”). Petitioner requests total attorneys ’ fees and c osts in the amount of $ 1 0,693.82

, represen ting $ 9,681.10 in attorneys ’ fees and $ 1, 012.72 in attorney s ’ costs

. Fees App.

at 2

. Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs related

1 The undersigned intend s 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 material from public acc ess. Because this unpublished ruling contains a reasoned explanation for the action in this case,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. 3755.2

to this litigation. Id. Respondent responded to the motion on March 1 3 , 2020

, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” R esp’t’s Resp. at 2

- 3, ECF No. 5 7 . Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys ’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable

attorneys ' fees , and other costs.” § 300aa

– 15(e)(1)(A)

– (B). Petitioners are entitled to an award of

reasonable attorneys ' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful , they are eligible so lon g as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant to a stipulation, he is entitled to a n award of final reasonable attorneys’ fees and costs.

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 inc lude 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).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson , 465 U.S. 886, 895 (1984) . 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. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

Petitioner requests the following rates of compensation for h is attorney , Ms. Shealene Mancuso: $225.00 per hour for work performed in 2017, $233.00 per hour for work performed in
2018, and $250.00 per hour for work performed in 2019. These rates are consistent with what Ms. Mancuso has previously been awarded for her Vaccine Program work, and the undersigned finds

them to be reasonable herein.

b. Reasonable Hours E xpended

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 their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton

, 3 F.3d at 1521 ( quoting Hensley v.

Eckerhart , 461 U.S. 424, 434 (1983)). Additionally, it is well

- established that billing for3

administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States

, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y o f Health & Human Servs. , No. 02

- 1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

Upon review, the undersigned finds the overall hours billed to be largely reasonable. However, a small amount must be reduced for excessive time billed by counsel to direct paralegal activity. Such entries typically concerned directing the firm paralegals to draft pro forma filings. In the undersigned ’s experience, it would not t ake an attorney six minutes to tell a paralegal to draft a status report, and this billed timed leads to a situation where the time spent preparing such filings is excessive. Upon review, an appropriate reduction for this time is $400.00. Accordingly,

Peti tioner is awarded final attorneys’ fees of $9,281.10.

c. Attorneys ’ 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). Petitione r requests

a total of $ 1,012.72 in attorneys ’ cost s

. Fees App. at 14

. This amount is comprised of acquiring
medical records, postage, and the Court’s filing fee

. All of these costs are typical of Vaccine Program litigation and are reasonable in the undersi gned’s experience

. Petitioner has provided adequate documentation supporting the request. Accordingly, the requested attorneys’ costs are

reasonable and shall be reimbursed in full.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that P etitione r’s request for fees and

costs , other than the reductions delineated above, is reasonable. T he undersigned finds that it is

reasonable to compensate P etitioner and h is counsel as follows:

Attorneys ’ Fees Requested $ 9,681.10 (Reduction to Fees )

- ($400.00)
Total Attorneys ’ Fees Awarded $ 9,281.10

Attorneys ’ Costs Requested $ 1, 012.72 (Reduction to Costs)

- Total Attorneys’ Costs Awarded $ 1,012.72

Total Amount Awarded $ 10,293.82

Accordingly, the undersigned awards a lump sum in the amount of $ 10,293.82

, representing reimbursement for reasonable attorneys ’ fees and costs, in the form of a check payable jointly to P etitioner and P etitioner’s counsel of record, M s. Shealene Mancuso

.4

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court shall enter judgment in accord ance herewith. 3

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler Special Master

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