The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: July 29, 2021)
* * * * * * * * * * * * * *
CARL BROWNING, * UNPUBLISHED
* No. 18-135V
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, Washington,
DC, for petitioner.
Mollie D. Gorney, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On January 26, 2018, Carl Browning (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2
(“Vaccine Act”). Petitioner alleged that he suffered from injuries including lung scarring, chronic
difficulty breathing, and pain as a result of a pneumococcal vaccination allegedly administered
on January 27, 2016. On March 5, 2021, petitioner’s family moved for a decision dismissing the
petition and on the same day, the undersigned issued her decision dismissing the petition for
insufficient proof. (ECF No. 56).
1
This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to
anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object
to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule
18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that
is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.
§§ 300aa.
On April 5, 2021, petitioner filed an application for attorneys’ fees and costs. Motion for
Attorney Fees and Costs (ECF No. 61). Petitioner requests compensation in the amount of
$36,923.25, representing $29,923.25 in attorneys’ fees and $7,000.00 in attorneys’ costs. Fees
App. at 1. Pursuant to General Order No. 9, counsel has stated that there is no party to sign a
statement because petitioner has passed away and his family has declined to create an estate, but
that petitioner did not pay a retainer to his counsel and to the best of counsel’s knowledge,
petitioner did not incur any costs related to the litigation. Fees App. Ex. 1 at 10. Respondent filed
his response on April 6, 2021, indicating that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Response at 2 (ECF No. 62). Petitioner
did not file a reply thereafter. The matter is now ripe for disposition.
For the reasons discussed below, the undersigned GRANTS petitioner’s motion and
awards a total of $35,328.17.
I. Discussion
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and
costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1).
When compensation is not awarded, the special master “may” award reasonable attorneys’ fees
and costs “if the special master or court determines that the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.” Id. at
§15(e)(1). In this case, although the petition was eventually dismissed, the undersigned does
not doubt that it was filed in good faith, and the evidence on the record supports the case
having a reasonable basis up until its eventual dismissal. Respondent also has not challenged
the good faith or reasonable basis of the claim. Accordingly, petitioner is entitled to a final
award of reasonable attorneys’ fees and costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348.
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs.,
3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It
is “well within the special master’s discretion to reduce the hours to a number that, in [her]
2
experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the
special master may reduce a fee request sua sponte, apart from objections raised by respondent
and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009).
A special master need not engage in a line-by-line analysis of a petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its
attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests …
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
application.” Saxton, 3 F. 3d at 1521.
i. Reasonable Hourly Rates
Petitioner requests the following hourly rates for the work of her counsel: for Ms. Renee
Gentry, $424.00 per hour for work performed in 2017, $435.00 per hour for work performed in
2018, $440.00 per hour for work performed in 2019, and $445.00 per hour for work performed in
2020, and for Mr. Cliff Shoemaker, $430.00 per hour for work performed in 2016, $440.00 per
hour for work performed in 2017, $450.00 per hour for work performed in 2018, and $460.00 per
hour for work performed in 2019. These rates are consistent with what counsel have previously
been awarded for their Vaccine Program work, and the undersigned finds them to be reasonable
herein.
Petitioner also requests a rate of $150.00 per hour for work performed by students at the
George Washington University Law School Vaccine Injury Clinic from 2017 to 2021. As case
law reflects and as Ms. Gentry notes in her affidavit, these student-attorneys have routinely had
their work billed at $145.00 per hour and been awarded that rate. Fees App. Ex. 1 at 13; see also
Temes v. Sec’y of Health & Human Servs., No. 16-1465V, 2021 WL 2375787, at *3 (Fed. Cl.
Spec. Mstr. Apr. 15, 2021). While the undersigned finds it reasonable to increase this hourly rate
for work performed in 2021, work performed in this case from 2017-2020 must be compensated
at $145.00 per hour consistent with what has previously been requested and awarded.
Application of this rate results in a reduction of $290.08.
ii. Reasonable Hours Expended
In reducing an award of fees, the goal is to achieve rough justice, and therefore a special
master may take into account their overall sense of a case and may use estimates when reducing
an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at
*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well
established that an application for fees and costs must sufficiently detail and explain the time
billed so that a special master may determine, from the application and the case file, whether the
amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760
3
(1989); Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and
costs claimed. Id. at *8.
The undersigned has reviewed the submitted billing entries and finds the total number of
hours billed to be largely reasonable. The billing entries accurately reflect the nature of the work
performed and the only billing entry the undersigned finds to be unreasonable is an entry from a
student attorney on 11/16/2018 in which 10 hours were billed on “Call to client re: affidavit.”
Fees App. Ex. 1 at 14. A reasonable explanation for this error would be that the student intended
to bill one hour for this task, which is consistent with a previous phone call made to the client
and what the undersigned would expect a reasonable amount of time to be for this task.
Accordingly, 9 hours of time will be reduced totaling $1,305.00.
Accordingly, petitioner is awarded final attorneys’ fees in the amount of $28,328.17.
b. Attorneys’ Costs
Petitioner requests a total of $7,000.00 in attorneys’ costs. This amount is for work
performed by petitioner’s medical expert, Dr. Joseph Bellanti. Fees App. at 19-20. The
undersigned has reviewed the requested costs and finds them to be reasonable and supported
with appropriate documentation. Accordingly, the full amount of costs shall be awarded.
II. Conclusion
Based on all of the above, the undersigned finds that it is reasonable compensate
petitioner and her counsel as follows:
Attorneys’ Fees Requested $29,923.25
(Total Reduction from Billing Hours) - ($1,595.08)
Total Attorneys’ Fees Awarded $28,328.17
Attorneys’ Costs Requested $7,000.00
(Reduction of Costs) -
Total Attorneys’ Costs Awarded $7,000.00
Total Attorneys’ Fees and Costs Awarded $35,328.17
Accordingly, the undersigned awards a lump sum in the amount of $35,328.17,
representing reimbursement for petitioner’s attorneys’ fees and costs, in the form of a
check payable to petitioner’s counsel, Ms. Renee Gentry.3
3
As requested in the status conference held on July 27, 2021, petitioner’s counsel filed a motion for leave to have
attorneys’ fees and costs paid directly to counsel in light of petitioner’s death and an affidavit of counsel on that
same day. (ECF No. 63). The affidavit details how following the death of petitioner, counsel endeavored for a year
to have petitioner’s surviving family establish an estate, but that all family members were either unable or unwilling
4
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
to do so and pursue the case. In light of these representations, the undersigned granted petitioner’s motion on July
29, 2021 (ECF No. 64) and payment of attorneys’ fees and costs is being made solely to counsel.
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing
the right to seek review.
5