In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: August 7, 2020

* * * * * * * * * * * * *  *                              UNPUBLISHED
L.A., a Minor, by His Parents and
                           *
Natural Guardians, MAGNUS  *
AKERSTROM and BRANDI       *
AKERSTROM,                 *                              No. 12-629V
                           *                              Special Master Horner
         Petitioners,      *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                              Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Renee J. Gentry, The Law Office of Renee J. Gentry, Washington, DC, for Petitioners.
Heather L. Pearlman, United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

         On September 24, 2012, Magnus and Brandi Akerstrom (“petitioners”) filed a petition for
compensation pursuant to the National Vaccine Injury Compensation Program on behalf of their
minor child, L.A.2 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioners alleged that L.A.’s flu mist
vaccine caused his seizures and encephalitis. Petition at 1. On December 15, 2016, the previously
assigned special master ruled that petitioners were entitled to compensation for L.A.’s bilateral
striatal necrosis. (ECF No. 97). On June 5, 2019, this case was reassigned to me. On December 6,
2019, the parties filed a proffer, which I adopted as my decision awarding compensation on the
1
 I intend 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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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 Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
same day. (ECF. No. 182).

        On February 4, 2020, petitioners filed an application for final attorneys’ fees and costs. 3
(ECF No. 188) (“Fees App.”). Petitioners request total attorneys’ fees and costs in the amount of
$193,344.71 (representing $146,628.50 in fees and $46,818.21 in costs). Fees App. at 1.4
Respondent responded to the motion on March 12, 2020, indicating that “Respondent is satisfied
the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Resp. at
2 (ECF No. 189). Petitioners did not file a reply 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 reasonable attorneys’ fees and
costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 

, 1347 (Fed.
Cir. 2008). This is a two-step process.

First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’”

Stenson, 

, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 

, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 

, 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., 

, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” 

(quoting Hensley v. Eckerhart, 

, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See 

. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.”

n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable.

 Petitioners were previously awarded interim attorneys’ fees and costs in the amount of $94,442.01 on
February 29, 2016.
4
  Petitioners’ motion originally requested attorneys’ costs of $45,555.21. On May 13, 2020, petitioners
filed an unopposed motion to amend their pending fees motion, as the motion had inadvertently failed to
include an invoice from petitioners’ guardianship attorney. (ECF No. 190).


                                                   2
        Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 

, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 

, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t
of Health & Human Servs., 

, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 

(Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” 

.

          a. Hourly Rates

        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, 

, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 

(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.5

       Petitioners request the following hourly rates for the work of their counsel: for Ms. Renee
Gentry, $415.00 per hour for work performed in 2016, $424.00 per hour for work performed in
2017, $435.00 per hour for work performed in 2018, $440.00 per hour for work performed in 2019,
and $464.00 per hour for work performed in 2020; for Mr. Clifford Shoemaker, $430.00 per hour
for work performed in 2016, $440.00 per hour for work performed in 2017, $450.00 per hour for
work performed in 2018, and $460.00 per hour for work performed in 2019; and for Ms. Sabrina
Knickelbein, $150.00 per hour for all paralegal work performed. These rates are consistent with
what these individuals have previously been awarded for their Vaccine Program work, and I find
them to be reasonable herein.

          b. Hours Expended

         Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” 

. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” 

. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 

, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 

, at *26.

        Upon review, I find the overall hours billed to be largely reasonable. However, some issues
exist with the billing entries attributable to Mr. Shoemaker which have previously been noted by
other special masters – namely, the vagueness of his entries and block billing. See Barry v. Sec'y

5
    The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.


                                                    3
of Health & Human Servs., No. 12-39, 

(Fed. Cl. Spec. Mstr. Oct. 25, 2016)
(reducing a fee award by ten percent due to vague billing entries); Mostovoy v. Sec'y of Health &
Human Servs., No. 02-10, 

(Fed. Cl. Spec. Mstr. Feb. 4, 2016). It is well
established that an application for fees and costs must sufficiently detail and explain the time billed
so that a special master may determine, from the application and the case file, whether the amount
requested is reasonable. Bell v. Sec'y of Health & Human Servs., 

, 760 (1989);
Rodriguez v. Sec'y of Health & Human Servs., No. 06-559, 

(Fed. Cl. Spec.
Mstr. June 27, 2009). Petitioners bear the burden of documenting the fees and costs claimed.
Rodriguez, 

, at *8.

        In this case, examples of vague entries prepared by Mr. Shoemaker include “Emails to
Renee,” “Emails from Renee,” and “emails from client” because they do not describe the topic of
the correspondence, leaving me unable to determine whether the time billed for the correspondence
was reasonable, or necessary at all. Additionally, Mr. Shoemaker block billed large amounts of
time on “Hearing preparation” without describing in greater detail what he was actually doing to
prepare for the hearing. Fees App. at 5 (entries of 11.0, 12.0, 7.0, 6.4 hours on hearing preparation
without greater detail). Accordingly, the undersigned shall reduce the amount of the fees
attributable to Mr. Shoemaker’s work by ten percent, resulting in a reduction of $5,983.20.

       The remainder of the hours appear reasonable. Accordingly, petitioners are awarded final
attorneys’ fees of $140,645.30.

       c. Attorneys’ Costs

        Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 

, 34 (Fed. Cl. 1992). Petitioners request
a total of $46,818.21 in attorneys’ costs. This amount comprises the cost of obtaining medical
records, work performed by various professionals, including petitioners’ medical expert, Dr. Carlo
Tornatore and Staci Schonbrun, life care planners at The Coordinating Center, vocational experts
at Labor Market Consulting Services, and petitioners’ guardianship attorney. Petitioners have
provided adequate documentation supporting the requested costs and all appear reasonable in my
experience. The only reduction necessary is for travel time billed by petitioners’ life care planner
at the full hourly rate, rather than one-half of that rate. Fees App. at 100. Accordingly, $525.00
shall be reduced from the final award of costs. Petitioners are therefore awarded final attorneys’
costs of $46,293.21.

II.    Conclusion

       Based on all the above, I find that petitioners are entitled to the following award of
reasonable attorneys’ fees and costs:

 Attorneys’ Fees Requested                                            $146,628.50
 (Reduction to Fees)                                                  - (5,983.20)
 Total Attorneys’ Fees Awarded                                        $140,645.30

 Attorneys’ Costs Requested                                            $46,818.21

                                                  4
    (Reduction of Costs)                                                  - ($525.00)
    Total Attorneys’ Costs Awarded                                        $46,293.21

    Total Attorneys’ Fees and Costs                                      $186,938.51

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioners’ request for fees and costs, other
than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the
amount of $186,938.51, representing reimbursement for petitioners’ attorneys’ fees and
costs, in the form of a check payable to petitioners and their attorney, Ms. Renee Gentry.

       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.6

         IT IS SO ORDERED.


                                                 s/Daniel T. Horner
                                                 Daniel T. Horner
                                                 Special Master




6
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

                                                     5