CORRECTED

    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-1339V
                                        (not to be published)


    GERALDINE ABEL,
                                                                Chief Special Master Corcoran
                         Petitioner,
    v.                                                          Filed: August 6, 2020


    SECRETARY OF HEALTH AND                                     Special Processing Unit                 (SPU);
    HUMAN SERVICES,                                             Attorney’s Fees and Costs


                         Respondent.


Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner.

Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for Respondent.

                       DECISION ON ATTORNEY’S FEES AND COSTS 1

       On September 26, 2017, Geraldine Able (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that she suffered a right “full-
thickness rotator cuff tear that was caused in fact” by an influenza vaccine administered
on October 15, 2016. (Petition at 1). On July 1, 2019, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 53).




1  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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). This means the decision 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.

2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
       Petitioner has filed a motion for attorney’s fees and costs, dated December 20,
2019 (ECF No. 58), requesting a total award of $23,378.38 (representing $21,472.50 in
fees and $1,905.88 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (Id. at 46).
Respondent reacted to the motion on December 31, 2019, indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case and defers to my discretion to determine the amount to be awarded. (ECF No. 59).
Petitioner did not file a reply thereafter.

                                       ANALYSIS

        The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 

, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 

, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 

, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.”

Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 

, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs., 

, 729 (2011).

       The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.”

n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” 

.

                                   ATTORNEY FEES

       Petitioner requests the following rates of compensation for the work of her
attorneys: for Mr. Lawrence Cohan, $420 per hour for work performed in 2017, $440 per
                                            2
hour for work performed in 2018, and $450 per hour for work performed in 2019; for Mr.
David Carney, $290 per hour for work performed in 2017, and $315 per hour for work
performed in 2018 and 2019; and $135 per hour for all paralegal work performed. (ECF
No. 58 at 2). The rates requested for Mr. Carney and for the paralegal work are consistent
with what they have previously been awarded, and I find no cause to reduce them in this
instance.

        The requested rate of $420 per hour Mr. Cohan, however, exceeds what has been
previously awarded for his time. See, e.g., Bartkus v. Sec’y of Health & Human Servs.,
No. 15-261V, 

(Fed. Cl. Spec. Mstr. April 19, 2019); Charneco v. Sec’y
of Health & Human Servs., No. 17-458V, 

, (Fed. Cl. Spec. Mstr. Jul.
18, 2019). In Bartkus, the special master noted that Mr. Cohan had been awarded
$400.00 per hour for work performed in 2017 because that was the rate at which he
warranted he billed his work.

the practice in the Vaccine Program to
retroactively increase rates previously awarded in the Program, 3 or to deviate from prior
rate awards simply because a petitioner asks for a higher rate in a subsequent case. 4 I
will therefore reduce Mr. Cohan’s rate for 2017 to the previously-awarded rate of $400.00
per hour. This results in a reduction in total fees to be awarded of $52.00. 5

                                          ATTORNEY COSTS

      Petitioner requests $1,905.88 in overall costs. (ECF No. 58 at 3). This amount is
comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have
reviewed all the requested costs and find them to be reasonable, and although Petitioner
did not provide adequate documentation in support of her request, I find the overall
amount to be reasonable and shall award it in full.




3On several prior occasions, present counsel has had a requested rate reduced to what he previously had
been awarded. See, e.g., Charneco v. Sec’y of Health & Human Servs., No. 17-0458V, 

(Fed. Cl. Spec. Mstr. July, 18, 2019); E.L., et al v. Sec’y of Health & Human Servs., No. 16-1635V, Slip
Op*45, December 10, 2019; Burkett et. al v. Sec’y of Health & Human Servs., No. 16-1267V, Slip Op *51,
January 22, 2020.
4 Petitioner notes that the requested rates were awarded in Torres-Ruiz v. Sec’y of Health & Human Servs.,

No. 17-0988, 

(Fed. Cl. Spec. Mstr. Nov. 13, 2019). However, that fees decision did not
include a reasoned analysis of the propriety of the relevant rate, and therefore does not provide useful
precedent.
5   This amount consists of $420 - $400 = $20 x 2.6 hrs = $52.00.

                                                     3
                                         CONCLUSION

       The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $23,326.38 (representing $21,420.50 in attorney’s fees and $1,905.88 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
counsel. 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. 6

IT IS SO ORDERED.

                                                      s/Brian H. Corcoran
                                                      Brian H. Corcoran
                                                      Chief Special Master




6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
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