NORA BETH DORSEY, Chief Special Master.
On April 12, 2016, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq., (the "Vaccine Act").
On April 26, 2017, petitioner filed a motion for attorneys' fees and costs. See Pet'r's Mot. Att'ys' Fees and Costs ("Pet'r's Mot.") (ECF No. 41). Petitioner requests attorneys' fees in the amount of $30,985.10 and attorneys' costs in the amount of $2,929.72. Id. at 1. Additionally, in accordance with General Order #9, petitioner's counsel represented that petitioner incurred $400.00 in out-of-pocket expenses. Id. Thus, the total amount requested is $34,314.82.
On April 27, 2017, respondent filed a response to petitioner's motion. Resp't's Resp. to Pet'r's Mot. (ECF No. 42). Respondent argues that "[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs." Id. at 1-2. Respondent adds, however, that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Id. at 2. Respondent "respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3.
Petitioner has filed no reply. The undersigned has reviewed the billing records submitted with petitioner's request and the matter is now ripe for adjudication.
Under the Vaccine Act, the special master shall award reasonable attorneys' fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). Petitioner in this case was awarded compensation pursuant to a stipulation, and therefore he is entitled to an award of reasonable attorneys' fees and costs.
"[S]pecial masters may consider their prior experience in reviewing fee applications and even dealings with the specific attorney involved." Savin, 85 Fed. Cl at 315. (citing Saxton, 3 F.3d at 1519). Petitioners bear the burden of documenting the fees and costs claimed. Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468 (Fed. Cl. Spec. Mstr. July 27, 2009).
Petitioner requests the following hourly rates:
Pet'r's Mot. at 5-19.
The Shoemaker firm's requested rates for 2015-2016 are within the ranges provided in McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 563423, *16 (Fed. Cl. Spec. Mstr. Oct. 18, 2016) and the Office of Special Masters' fee schedules.
The 2017 requested rates for Mr. Shoemaker and Ms. Gentry have previously been found to be "inappropriately high." Morales v. Sec'y of Health & Human Servs., No. 14-1186V, 2017 WL 2806705, at *2 (Fed. Cl. Spec. Mstr. May 30, 2017) (reducing Mr. Shoemaker's 2017 rate from the requested $446 to $440 per hour and Ms. Gentry's requested $430 to $424 per hour); Bookey v. Sec'y of Health & Human Servs., No, 13-26V, 2017 WL 2544892, at *2 (Fed. Cl. Spec. Mstr. May 18, 2017) (setting Mr. Shoemaker's hourly rate for 2017 at $440 and Ms. Gentry's hourly rate for 2017 at $424). Mr. Shoemaker's and Ms. Gentry's requested rates exceed the applicable range for work performed in the Vaccine Program for that year. Based on the reasoning in Morales and Bookey, the undersigned awards Mr. Shoemaker $440 and Ms. Gentry $424 per hour for work performed in 2017. As in Bookey and Morales, the undersigned awards Ms. Knickelbein's requested rate of $378 per hour for work performed in 2017.
After the hourly rate is determined, the reasonableness of the total hours expended must be deliberated. Sabella, 86 Fed. Cl. At 205-06. While petitioners are entitled to an award of attorneys' fees and costs, the undersigned finds that a reduction in the number of hours billed by petitioners' counsel is appropriate for two reasons. First, petitioner's counsel requests compensation at an attorney's hourly rate for paralegal work. Second, certain billing entries are vague and do not sufficiently detail or explain the time billed.
For these reasons, and after carefully reviewing petitioners' application, the undersigned reduces petitioners' attorneys' fees award. In making reduction, a line-by-line evaluation of the fee application is not required. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482, 484, aff'd in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters may rely on their experience with the Vaccine Act and its attorneys to determine the reasonable number of hours expended. Id. Just as "[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . [v]accine program special masters are also entitled to use their prior experience in reviewing fee applications." Saxton, 3 F.3d at 1521.
It is well established that attorneys who bill for performing non-attorney level work must appropriately reduce their hourly rate to reflect that of a paralegal. Mostovoy v. Sec'y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). After carefully reviewing petitioner's application for fees and costs, the undersigned finds that certain entries reflect paralegal tasks but are billed at the full attorney hourly rate.
The undersigned has previously reduced attorneys' fees for similar incorrectly billed entries. See Wilson v. Sec'y of Health & Human Servs., No. 15-551V, 2017 WL 877278, at *3 (Fed. Cl. Spec. Mstr. Feb. 10, 2017) (reducing attorneys' fees for billing at attorney rates for paralegal tasks, including preparing exhibits to be filed, working on a list of medical providers, and talking to medical providers to collect records and verify which records have been received); Davis v. Sec'y of Health & Human Servs., No. 15-159V, 2017 WL 877277, at *3 (Fed. Cl. Spec. Mstr. Feb. 7, 2017) (reducing attorneys' fees for incorrectly billing at attorney rates for paralegal tasks).
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., 18 Cl. Ct. 751, 760 (1989). Petitioner bears the burden of documenting the fees and costs claimed. Rodriguez, 2009 WL 2568468 at *8. The undersigned has previously found it reasonable to decrease an award of attorneys' fees for vagueness. Mostovoy, 2016 WL 720969; Barry v. Sec'y of Health & Human Servs., 12-39V, 2016 WL 2568468 (Fed. Cl. Spec. Mstr. Oct. 25, 2016) (reducing a fee award by 10% for vague billing entries).
The undersigned finds the number of vague billing entries in this case particularly troubling.
For all of these reasons, the undersigned will reduce petitioner's entire fee award by 10%.
The requirement that attorneys' fees be reasonable also applies to costs. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Petitioner requests reimbursement for attorney costs in the amount of $2,929.72. The undersigned finds no cause to reduce petitioner's request and awards the full amount sought.
The undersigned awards petitioner the following for attorneys' fees and costs:
The clerk of the court shall enter judgment in accordance herewith.