UNPUBLISHED

DECISION ON ATTORNEYS' FEES AND COSTS1

NORA BETH DORSEY, Chief Special Master.

On September 13, 2016, 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 alleged that he suffered a shoulder injury related to vaccine administration ("SIRVA") following influenza ("flu") vaccinations on September 25, 2013. On May 26, 2017, the undersigned issued a decision awarding compensation to petitioner based on respondent's proffer. (ECF No. 22.)

On July 10, 2017, petitioner filed a motion for attorneys' fees and costs. (ECF No. 27.) Petitioner requests attorneys' fees in the amount of $17,103.603 and attorneys' costs in the amount of $1,239.01. (Id. at 1.) In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Thus, the total amount requested is $18,342.61.

On July 21, 2017, respondent filed a response to petitioner's motion. (ECF No. 29.) 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. 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 filed no reply. However, on August 9, 2017, the undersigned ordered petitioner to file invoices and receipts supporting the requested costs as well as an affidavit addressing the basis for counsel's requested rate. (ECF No. 30.) On August 30, 2017, petitioner's counsel filed, along with the required invoices, an affidavit explaining that this is his first vaccine case, but noting that he has been admitted to practice law since 1972. (ECF No. 31.) Mr. Bekman stressed his quality of work in the case as well as the fact that his typical rate for complex civil litigation is higher than what is awarded in Vaccine Act cases.4 (Id.)

Petitioner seeks an hourly rate of $440 per hour for all of the work Mr. Bekman performed in this case during 2016 and 2017. Additionally, petitioner requests a rate of $148 for all paralegal and law clerk work performed during the same period. (ECF No. 27-1.) This represents the maximum compensation available under the Office of Special Masters Attorneys' Forum Hourly Rate Fees Schedule: 2017.5 However, Mr. Bekman has no prior experience with Vaccine Program cases. Based on Mr. Bekman's minimal experience in the Vaccine Program, the undersigned finds a rate of $385.00 per hour is appropriate for work performed prior to 2017, and $395 for work performed in 2017. See McCulloch v. HHS, 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (noting that vaccine attorneys with over 20 years of experience should receive between $350 and $415 per hour, and further noting that higher rates should be reserved for attorneys with significant vaccine experience). Accord Johnson v. HHS, No. 15-602V, 2017 WL 4210578 (Fed. Cl. Spec. Mstr. June 26, 2017) (reducing an attorney barred in 1972 from a requested rate of $415 per hour to $385 per hour for work performed in 2016 due to lack of prior vaccine experience). Additionally, the undersigned reduces the paralegal and law clerk rates to $145 for 2016. Adjusting these rates results in a reduction of $1,550.15.6

Additionally, the undersigned notes that in February of 2016, Mr. Bekman billed 4 hours researching the Vaccine Rules and reviewing the guidelines for practicing under the National Vaccine Injury Compensation Program. Additionally, Mr. Bekman billed .8 hours in February and March of 2016 gathering letters of good character and preparing his admission to the Court of Federal Claims. (ECF No. 27-1, pp. 1-2.)These 4.8 hours are not compensable. It is well established that attorneys may not be compensated for professional development concerning the Vaccine Program. See, e.g., Lord v. HHS, No. 12-255V, 2016 WL 3960445, at *4 (Fed. Cl. Spec. Mstr. June 30, 2016). Thus, the undersigned further reduces attorneys' fees by $1,848.00.7

Finally, in light of the extensive recalculation of counsel's billing records required to resolve this fee application due to counsel's erroneous billing records (see n.3, supra), the undersigned will not compensate counsel for the two hours he billed for "review and editing of Motion for Attorneys' Fees and Costs." (ECF No. 27-1, p. 4.) Given the resulting work product, petitioner's application fails to establish that hours spent reviewing the application were reasonably billed. This results in a reduction of $790.00.8

The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). For the reason described above, the undersigned GRANTS petitioner's motion for attorneys' fees and costs in the reduced amount of $14,154.46.

Accordingly, the undersigned awards the total of $14,154.469 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel Paul D. Bekman, Esq.

The clerk of the court shall enter judgment in accordance herewith.10

IT IS SO ORDERED.