DECISION ON ATTORNEYS' FEES AND COSTS1

HERBRINA D. SANDERS, Special Master.

On May 31, 2017, Lauren Jankowski ("Petitioner") filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program on behalf of L.J., her minor child.2 42 U.S.C. §§ 300aa-10 to 34 (2012). The petition alleged that L.J. suffered from idiopathic thrombocytopenic purpura ("ITP") as a result of an influenza ("flu") vaccine he received on November 18, 2014. Pet. at 1, ECF No. 1. On June 29, 2018, Petitioner filed an unopposed motion for a decision dismissing her petition. ECF No. 29. On the same day the undersigned issued her Decision dismissing the petition for insufficient proof. Decision, ECF No. 30.

On January 23, 2019, Petitioner filed an application for attorneys' fees and costs. ECF No. 35 ("Fees App."). Petitioner requests total attorneys' fees and costs in the amount of $16,288.02 (representing $13,112.43 in fees and $3,175.59 in costs). Fees App. at 4. Pursuant to General Order No. 9, Petitioner warrants that she has not incurred any fees or costs related to the prosecution of her petition. ECF No. 34. Respondent responded to the motion on February 4, 2019, indicating that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case" and requesting that the undersigned "exercise her discretion and determine a reasonable award for attorneys' fees and costs." Resp't's Resp. at 2-3 (ECF No. 36). Petitioner filed a reply on February 8, 2019, reiterating her belief that the amount requested for attorneys' fees and costs is reasonable. Pet'r's Reply, ECF No. 37.

This matter is now ripe for consideration.

I. Reasonable Attorneys' Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award "reasonable attorneys' fees, and other costs." § 300aa-15(e)(1)(A)-(B). Petitioners are entitled to an award of reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, the undersigned does not doubt that the petition was filed in good faith, and although the petition was eventually dismissed, the undersigned finds that there was reasonable basis to file the petition. Respondent has also not challenged the reasonable basis of the petition. Accordingly, a final award of fees is appropriate.

It is "well within the special master's discretion" to determine the reasonableness of fees. Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993); see also Hines v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 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., 85 Fed. Cl. 313, 316-18 (2008). Such applications, however, should not include hours that are "`excessive, redundant, or otherwise unnecessary.'" Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the "prevailing market rate" in the relevant community. See Blum, 465 U.S. at 895. The "prevailing market rate" is akin to the rate "in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte, without providing petitioners notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 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., 102 Fed. Cl. 719, 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., 24 Cl. Ct. 482, 484 (1991), rev'd on other grounds and aff'd in relevant part, 988 F.2d 131 (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." Saxton, 3 F.3d at 1521.

a. Hourly Rates

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, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for recons. denied, 2015 WL 6181910 (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, and 2019 can be accessed online.3

Petitioner requests the following rates of compensation for the work of her attorney, Mr. Mark Sadaka: $350.00 per hour for work performed in 2015, $362.95 per hour for work performed in 2016, $376.38 per hour for work performed in 2017, and $396.00 per hour for work performed in 2018. Fees App. at 4. Petitioner also requests that paralegals be compensated at rates between $135.00 per hour to $150.55 per hour depending on the year of the work. Id. These rates are consistent with what Mr. Sadaka and his staff have consistently been awarded by the undersigned and other Special Masters. Accordingly, no adjustment to the requested rates is necessary.

b. Hours Expended

Attorneys' fees are awarded for the "number of hours reasonably expended on the litigation." Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are "excessive, redundant, or otherwise unnecessary." Saxton, 3 F.3d at 1521.

Upon review, the undersigned finds the hours billed in this matter to be reasonable. The entries accurately reflect the nature of the task, and the time billed on these entries appears to be reasonable in the undersigned's experience. Respondent also has not identified any particular entries as objectionable. Petitioner is therefore entitled to the full amount of attorneys' fees sought, $13,112.43.

c. Attorneys' Costs

Like attorneys' fees, a request for reimbursement of attorneys' costs must be reasonable. Perreira v. Sec'y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total of $3,175.59 in attorneys' costs. This amount comprises the cost of obtaining medical records, mailing costs, the Court's filing fee, and a retainer paid to Dr. M. Eric Gershwin which covered review of medical records. All the costs appear reasonable in the undersigned's experience and Petitioner has provided adequate documentation for them. Petitioner is thus entitled to the full amount of costs sought.

II. Conclusion

Based on all the above, the undersigned finds that Petitioner is entitled to the following award of reasonable attorneys' fees and costs:

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-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. Accordingly, the undersigned awards the following:

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.