NORA BETH DORSEY, Chief Special Master.
On May 17, 2016, John Swan ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,
On May 8, 2017, petitioner filed a motion requesting $11,980.00 in attorneys' fees and $934.45 in attorneys' costs for a total amount of $12,914.45. Motion for Attorneys' Fees and Costs ("Motion") at ¶ 5 (ECF No. 23). Petitioner incurred no out-of-pocket expenses. Id.
Petitioner requests an award of attorneys' fees and costs in the amount of $12,914.45. The motion included contemporaneously created time and expense sheets, and supporting information for his counsel's requested hourly rates. See Motion at ¶¶ 1-7; Exhibit A.
Respondent filed a response on May 9, 2017, stating that he "does not object to the overall amount sought, as it is not an unreasonable amount to have been incurred for proceedings in this case to date." (ECF No. 25). However, respondent's "lack of objection should not be construed as admission, concession, or waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs." Id.
Since respondent raised no objections, a reply is unnecessary. The undersigned will now decide the matter.
Under the Vaccine Act, an award of reasonable attorneys' fees and costs is mandatory where a petitioner is found entitled to compensation. § 15(e)(1). However, where the petitioner is unsuccessful, the special master must first determine whether the petition was brought in good faith and the claim had a reasonable basis, before awarding attorneys' fees and costs. Id. In this case entitlement was denied, so an award of attorneys' fees and costs is contingent on the undersigned finding good faith and reasonable basis.
The undersigned has reviewed the petition, medical records, and other evidence submitted in this case and finds that petitioner brought his petition in good faith, and that there was a reasonable basis for his claim. Further, once petitioner determined that he would be unable to prove entitlement to compensation, he promptly moved to dismiss his claim. In light of the foregoing, the undersigned finds that petitioner should receive an award of reasonable attorneys' fees and costs.
The undersigned has reviewed the billing records submitted with petitioner's request. In the undersigned's experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates.
The Vaccine Act permits an award of reasonable attorneys' fees and costs to an unsuccessful litigant when the special master determines that the petition was brought in good faith and that the claim had a reasonable basis. § 15(e). The undersigned has done so herein. Therefore, the undersigned
The clerk of the court shall enter judgment in accordance herewith.
First, over the course of the case, petitioner's counsel billed 7.6 hours, in increments of 0.3 hours, to review the case file (this activity was distinct from medical record review), generating fees totaling $2,005. Some of these entries are billed back-to-back, with no intervening activity in the case. Such billing could be deemed excessive.
Second, there are more than a dozen entries for reviewing various routine, non-substantive notices, several of which are billed at 0.2 hours. This activity generated fees totaling $467.50. It is questionable whether this activity should even be billed for, but certainly not at 0.2 hours per entry, as most of the notices consisted of a single sentence (e.g., notice of assignment, notice of appearance).
Finally, petitioner's counsel billed nearly an hour ($192.50) to