The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1954V
Filed: May 24, 2024
MACKENZIE CRAMER, Special Master Horner
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Kathleen Margaret Loucks, Lommen Abdo Law Firm, Minneapolis, MN, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On December 26, 2019, 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 alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of her February 19, 2018 Tetanus-diphtheria-acellular
pertussis vaccination. Petition at 1. On August 4, 2023, the parties filed a joint stipulation,
which I adopted as my decision awarding compensation on the same day. (ECF Nos. 60-
61.)
On September 28, 2023, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 66.) (“Fees App.”). Petitioner requests attorneys’ fees in the amount of
$34,133.40 and attorneys’ costs and expert fees in the amount of $11,423.83. Fees App.
at 1. Pursuant to General Order No. 9, petitioner has indicated that she has not personally
incurred any costs in pursuit of this litigation. Fees App. Ex. 4. Thus, the total amount
1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision 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.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
requested is $45,557.23. On October 6, 2023, respondent filed a response to petitioner’s
motion. (ECF No. 83.) Respondent argues that “[n]either the Vaccine Act nor Vaccine
Rule 13 requires respondent to file a response to 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 requests that the Court exercise its discretion and
determine a reasonable award for attorneys’ fees and costs.” Id. at 3. 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., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-48.
First, a court determines an “initial estimate . . . by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting Blum
v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward or
downward departure from the initial calculation of the fee award based on specific
findings. Id. at 1348.
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 894-95. 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
2
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
Petitioner requests the following hourly rates for the work of his counsel, Ms.
Kathleen Loucks: $358.00 per hour for work performed in 2018, $360.00 per hour for work
performed in 2019, $362.00 per hour for work performed in 2020, $365.00 per hour for
work performed in 2021, $370.00 per hour for work performed in 2022, and $375.00 per
hour for work performed in 2023. Fees App. at 4. These rates are consistent with what
counsel has previously been awarded for their Vaccine Program work and shall be
awarded herein. See e.g., L.D. v. Sec'y of Health & Human Servs., No. 22-0495V, 2023
WL 2776881 (Fed. Cl. Spec. Mstr. Apr. 4, 2023).
Additionally, petitioner requests compensation for paralegals at the Lommen Abdo
Law Firm, including Esther J. Novak, Jody Thorsett, Danielle Dehnke, and Katie R.
Grenell at the following hourly rates: $132.00 per hour for work performed in 2018,
$135.00 per hour for work performed in 2019, $137.00 per hour for work performed in
2020, $139.00 per hour for work performed in 2021, $153.00 per hour for work performed
in 2022, and $161.00 per hour for work performed in 2023. Fees App. Ex. 1 at 4. The
requested hourly rates requested for work performed by the paralegals through the end
of 2021 are reasonable and consistent with prior determinations, and will therefore be
adopted. However, I find a reduction in the hourly rate proposed for the paralegals in 2022
and 2023 to be appropriate. The paralegals have been previously found eligible for the
lesser rate of $142.00 per hour for time billed in 2022 and in 2023. L.D, 2023 WL 2776881,
at *3. I find no reason to deviate from such reasoned determinations, and it otherwise is
not the practice of OSM to adjust prior rate determinations upward in later cases. See
Jefferson v. Sec'y of Health & Hum. Servs., No. 19-1882V, 2023 WL 387051 (Fed. Cl.
Spec. Mstr. Jan. 9, 2023). This results in a reduction of attorney’s fees to be awarded of
$248.60.3
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. 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, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015).
3 This amount consists of ($153 - $142 = $11 x 13.1 hours billed in 2022 = $144.10) + ($161 - $142 = $19
x 5.50 hours billed in 2023 = $104.00) = $248.60
3
Clerical and secretarial tasks should not be billed at all, regardless of who performs them.
See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review, the overall number of hours billed appears to be reasonable. I have
reviewed the billing entries and find that they adequately describe the work done on the
case and the amount of time spent on that work. I do not find any of the entries to be
objectionable, nor has respondent identified any as such. Petitioner is therefore awarded
final attorneys’ fees of $33,884.80.
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 $11,423.83 in attorneys’ costs, comprised of
acquisition of medical records, postage, and the Court’s filing fee. Fees App. Ex. 3 at 1.
This amount also includes expert services performed by Naveed Mayer Natanzi, DO,
board certified in pain management, and physical medicine and rehabilitation, at $520.00
per hour for 17.5 hours totaling $9,100.00. Id. at 21, 38. Dr. Natanzi’s rate is consistent
with what he has previously been awarded for his expert services, and I find it to be
reasonable herein. See, e.g., Peka v. Sec'y of Health & Human Servs., No. 20-1099V,
2023 WL 9288151 (Fed. Cl. Spec. Mstr. Dec. 20, 2023). Accordingly, I find that all costs
have been supported with the necessary documentation and are reasonable. Petitioner
is therefore awarded the full amount of costs sought.
II. Conclusion
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. I find it reasonable to compensate petitioner and her
counsel as follows: a lump sum in the amount of $45,308.63, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check
payable to petitioner and petitioner’s counsel, Ms. Kathleen Loucks.
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