In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: May 14, 2020

* * * * * * * * * * * * *  *                              UNPUBLISHED
ERICA WINEBRENNER on behalf*
of her deceased minor child, S.W.,
                           *                              No. 19-379V
                           *                              Special Master Horner
         Petitioner,       *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                              Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.
Catherine E. Stolar, United States Department of Justice, Washington, D.C., for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On March 12, 2019, Erica Winebrenner filed a petition for compensation pursuant to the
National Vaccine Injury Compensation Program on behalf of her minor child, S.W.2 42 U.S.C. §§
300aa-10 to 34 (2012). The petition alleged that the Pediarix, Prevnar, Hib, and Rotavirus vaccines
he received on March 14, 2017 caused his death. (ECF No. 1). On January 20, 2020, petitioner
filed a motion for a decision dismissing her petition, and on January 27, 2020, I issued my decision
dismissing the petition for insufficient proof. (ECF No. 23).

       On January 27, 2020, petitioner filed an application for attorneys’ fees and costs. (ECF No.
24) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $14,131.84

1
 I intend 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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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).
(representing $13,632.50 in fees and $499.34 in costs). Fees App. at 9. Respondent responded to
the motion on February 20, 2020, indicating that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case” and requests that I exercise my discretion
and determine a reasonable award for attorneys’ fees and costs. Resp. at 2–3 (ECF No. 28).
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., 

, 1347 (Fed.
Cir. 2008). This is a two-step process.

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

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.

can 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.” 

.


                                                  2
          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, 

, 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 compensation for her counsel at the following rates: for Mr. Andrew
Downing, $385.00 per hour for all work performed in this case, and for Ms. Courtney Van Cott,
$205.00 per hour for work performed in 2019 and $275.00 per hour for work performed in 2020.
These rates are consistent with what Mr. Downing and Ms. Van Cott have previously been awarded
for their Vaccine Program work, and I find them to be reasonable for the instant case.

          b. Hours Expended

         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.” 

. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 

, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 

, at *26.

        Upon review, I find the overall hours billed to be reasonable. Counsel has provided
sufficiently detailed descriptions for the tasks performed, and, upon review, the undersigned does
not find any of the billing entries to be unreasonable. Respondent also did not indicate that he
finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final
attorneys’ fees in the amount of $13,632.50.

          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 $499.34 in attorneys’ costs. This amount comprises the cost of obtaining medical records,
the Court’s filing fee, postage. Petitioner has provided adequate documentation supporting the
requested costs and all appear reasonable in my experience. Petitioner is thus entitled to the full
amount of attorneys’ costs sought.

II.       Conclusion



3
    The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.


                                                    3
       Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:

    Attorneys’ Fees Requested                                             $13,632.50
    (Reduction to Fees)                                                        -
    Total Attorneys’ Fees Awarded                                         $13,632.50

    Attorneys’ Costs Requested                                              $499.34
    (Reduction of Costs)                                                       -
    Total Attorneys’ Costs Awarded                                          $499.34

    Total Attorneys’ Fees and Costs                                       $14,131.84

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs is
reasonable. Accordingly, I award a lump sum in the amount of $14,131.84, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to
petitioner and her attorney, Mr. Andrew Downing.

       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.


                                                 s/Daniel T. Horner
                                                 Daniel T. Horner
                                                 Special Master




4
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

                                                     4