In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                        Filed: September 2, 2020

* * * * * * * * * * * * *  *
SEAN MCLOUGHLIN, Executor  *
of the Estate of JOHN      *
MCLOUGHLIN,                *                               No. 17-1478V
                           *                               Special Master Sanders
         Petitioner,       *
                           *                               UNPUBLISHED
v.                         *
                           *
SECRETARY OF HEALTH        *                               Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *

Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington,
DC, for Petitioner;
Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.

                 DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

       On October 10, 2017, Sean McLoughlin (“Petitioner”) filed a petition for compensation as
executor of the estate of John McLoughlin pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §300aa-10 et seq. (2012). Petitioner alleged that the influenza vaccine Mr.
McLoughlin received on October 24, 2014, caused him to develop Guillain-Barré syndrome. On


1
  The undersigned intends 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,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. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
September 3, 2019, the parties filed a stipulation for award, which the undersigned adopted as her
decision awarding compensation on September 9, 2019. ECF No. 38.

        On March 9, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 44
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $33,394.06,
representing $28,523.10 in attorneys’ fees and $4,870.96 in attorneys’ costs. Pursuant to General
Order No. 9, Petitioner has indicated that he has incurred out of pocket costs of $400.00.
Respondent responded to the motion on March 18, 2020, stating that Respondent “is satisfied that
the statutory requirements for an award of attorneys’ fees and costs are met in this case” and asking
the Court to “exercise its discretion and determine a reasonable award for attorneys’ fees and
costs.” Resp’t’s Resp. at 2-3, ECF No. 45. Petitioner 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., 

, 1348 (Fed.
Cir. 2008). This is a two-step process.

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

(quoting Blum v. 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.

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 Rate

        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.3

        Petitioner requests the following hourly rates for the work of his counsel: for Mr. Clifford
Shoemaker, $415.00 per hour for work performed in 2015, $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. 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, and $445.00 per hour for work performed in 2019. Petitioner also
requests that work performed by students at the George Washington University Law School
Vaccine Injury Clinic be compensated at $145.00 per hour for their work. These hourly rates are
consistent with what the work of Mr. Shoemaker, Ms. Gentry, and GWU Law School students has
previously been compensated at, and the undersigned finds them to be reasonable herein.

       b. Reasonable Number of Hours

         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.” 

(quoting Hensley v.
Eckerhart, 

, 434 (1983)).

        The undersigned and other special masters have previously noted some of the inherent
billing issues which arise from the arrangement Ms. Gentry and Mr. Shoemaker have with The
George Washington University Law School. See, e.g., Clubb v. Sec’y of Health & Human Servs.,
No. 15-891V, 

(Fed. Cl. Spec. Mstr. Feb. 4, 2019); Parker v. Sec’y of Health &
Human Servs., No. 02-1553V, 

(Fed. Cl. Spec. Mstr. Jun. 19, 2018). In short,
because Ms. Gentry and Mr. Shoemaker serve both as attorneys and professors in these cases, there
is an inherent element of teaching the students which leads to an increased number of hours billed,
both by the attorneys and the students, who fill the role traditionally filled by paralegals in Vaccine
Program cases. This leads to overbilling because Ms. Gentry and Mr. Shoemaker must expend
more time to provide guidance to the students than would typically be expected between an

3
 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 

.
attorney and experienced paralegal. Additionally, the students bill more time than would be
expected to complete routine tasks because they have much less experience handling casework
than the average paralegal.

        These issues are present in the instant case. The undersigned notes that a large amount of
time was billed on communication with students, which is not typically present in non-GWU cases
handled by counsel. Furthermore, the GWU students billed a generally excessive amount of time
to complete routine work, and also billed for clerical tasks (examples include one student billing
one hour to prepare a motion for enlargement of time and two hours to prepare a notice of filing,
an updated exhibit list, and the statement of completion, and another student billing over six hours
to print hard copies of correspondence and court filings and organize them).

        Overall, upon review of the submitted billing entries the undersigned finds that a twenty
percent overall reduction is warranted. This results in a reduction of $5,704.62. Petitioner is
therefore awarded final attorneys’ fees in the amount of $22,818.48.

       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). Petitioner requests
a total of $4,870.96 in attorneys’ costs, comprised of acquiring medical records, postage, and work
performed by Petitioner’s expert, Dr. Carlo Tornatore. Fees App. at 13. Petitioner has provided
adequate documentation of all these expenses and they appear reasonable for the work performed
in this case. Petitioner is therefore awarded the full amount of costs sought.

       d. Petitioner’s Costs

       Pursuant to General Order No. 9, Petitioner states that he has incurred $400.00 in out of
pocket costs for the filing fee. This cost is reasonable and petitioner has provided documentation
supporting it, and the undersigned shall fully reimburse Petitioner.

       II.     Conclusion

        In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to
compensate Petitioner and her counsel as follows:

 Attorneys’ Fees Requested                                           $28,523.10
 (Reduction to Fees)                                                - ($5,704.62)
 Total Attorneys’ Fees Awarded                                       $22,818.48

 Attorneys’ Costs Requested                                          $4,870.96
 (Reduction of Costs)                                                    -
 Total Attorneys’ Costs Awarded                                      $4,870.96

 Total Attorneys’ Fees and Costs                                     $27,689.44
    Petitioner’s Costs                                                     $400.00

    Total Amount Awarded                                                  $28,089.44


          Accordingly, the undersigned awards the following:

          1) a lump sum in the amount of $27,689.44, representing reimbursement for
             Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner
             and Petitioner’s counsel, Ms. Renee Gentry/The George Washington University
             Law School; and

          2) a lump sum in the amount of $400.00, representing reimbursement for
             Petitioner’s costs, in the form of a check payable to Petitioner.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.4

                 IT IS SO ORDERED.

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




4
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.