In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 3, 2017
* * * * * * * * * * * * * *
R.H., by her parents and natural guardians, * No. 15-726V
JASMATIE and RYON HARDEEN, *
*
Petitioners, * Special Master Sanders
*
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Reasonable Hourly Rate.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioners.
Linda S. Renzi, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On July 13, 2015, Jasmatie and Ryon Hardeen (“Petitioners”) filed a petition on
behalf of their daughter, R.H., for compensation in the National Vaccine Injury
Compensation Program [“the Program”].2 Decision 1, ECF No. 52. They alleged that
the Diphtheria-Tetanus-acellular Pertussis (“DTaP”), inactivated polio (“IPV”),
haemophilus influenza (“Hib”), pneumococcal conjugate (“PCV7”), and Rotavirus
vaccinations R.H. received on January 16, 2014 caused her to suffer epilepsy and
developmental delays. Id. On March 14, 2017, the undersigned issued a decision
dismissing their petition for insufficient proof. Id.
1
This decision shall be posted 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). In accordance with
Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other
information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the
rule requirement, a motion for redaction must include a proposed redacted decision. If,
upon review, the undersigned agrees that the identified material fits within the
requirements of that provision, such material will be deleted 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 “§” references to the Vaccine Act will be to the
pertinent subparagraph of 42 U.S.C. § 300aa (2012).
Petitioners filed a motion for attorneys’ fees on June 21, 2017. Mot. Att’ys’ Fees,
ECF No. 55. Petitioners requested $30,424.00 for attorneys’ fees and $1,777.12 in costs,
totaling $32,201.12. Id. at 1. Respondent filed a Response on July 18, 2017. Resp’t’s
Resp., ECF No. 56. He indicated that “[t]o the extent the Special Master is treating
[P]etitioners’ request for attorneys’ fees and costs as a motion that requires a response
from [R]espondent . . . Respondent is satisfied the statutory requirements for an award of
attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “recommend[ed]”
for the undersigned to “exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” Id. at 3. Petitioners did not file a reply. See Docket Rep.
For the reasons discussed below, the undersigned awards Petitioners’ Motion for
Attorneys’ Fees and Costs in part.
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, 1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a
court determines an “initial estimate . . . by ‘multiplying the numbers of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-48 (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).
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). In McCulloch, Special Master Gowen held that an
attorney with twenty or more years of experience has a reasonable hourly rate between
$350 and $425. Id. The Court recently updated the McCulloch rates for 2015-20163 and
3
The 2015-2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-
Schedule2015-2016.pdf. The hourly rates contained in the 2015-2016 Fee Schedule are
2
2017.4 For attorneys with twenty to thirty years of experience, the reasonable hourly fee
range for work performed in 2017 is $358 to $424. The revised rate schedule also
contains increased rates for attorneys with more than thirty-one years of experience.
a. Hourly Rates
The first step of the lodestar approach involves determining an estimate by
calculating “the numbers of hours reasonably expended on the litigation times a
reasonable hourly rate.” Avera, 515 F.3d at 1347-48 (quotation omitted). Petitioners’
counsel, Mr. Clifford Shoemaker requested an hourly rate of $415 for his work
performed in 2015, $430 for 2016, and $446 for 2017. Mot. Att’ys’ Fees 4-12. Another
attorney in Mr. Shoemaker’s firm, Ms. Sabrina Knickelbein, requested hourly rates of
$350 for 2015, $365 for 2016, and $378 for 2017. Id. at 9-21.
Mr. Shoemaker’s requested rates for 2015 and 2016 are within the ranges
provided in the 2015-16 Office of Special Masters’ Attorneys’ Forum Hourly Rate Fee
Schedule5 and have been found reasonable. See, e.g., Bookey by Rosenbloom v. Sec’y of
Health & Human Servs., No. 13-26V, 2017 WL 2544892 (Fed. Cl. Spec. Mstr. May 18,
2017); Mikkelson v. Sec’y of Health & Human Servs., No. 15-867V, 2016 WL 6803786
(Fed. Cl. Spec. Mstr. Oct. 3, 2016). Ms. Knickelbein’s rate requests are likewise
reasonable under both the 2015-2016 and 2017 Fee Schedules, and her requests have
been found reasonable. Bookey v. Sec’y of Health & Human Servs., No. 13-026, 2017
WL 2544892, at *2 (Fed. Cl. Spec. Mstr. May 18, 2017). Consequently, the undersigned
finds that Ms. Knickelbein’s requested rates and Mr. Shoemaker’s 2015 and 2016 rates
are reasonable.
However, Mr. Shoemaker’s rate for 2017 requires some adjustment. Petitioners
request that Mr. Shoemaker receive $446 an hour for work performed in 2017. Mot.
Att’ys’ Fees 11-12. Mr. Shoemaker has been practicing law for over 40 years and has
significant experience in the Vaccine Program. However, the 2017 Fee Schedule
provides a maximum hourly rate of $440 for attorneys with more than thirty-one years of
experience.6 Therefore, the undersigned sets Mr. Shoemaker’s reasonable hourly rate for
2017 at $440. The resulting deduction totals $49.80.
updated from the decision in McCulloch v. Secretary of Health and Human Services.
2015 WL 5634323, at *19.
4
The 2017 Fee Schedule can be accessed at:
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-
2017.pdf. The hourly rates contained in the 2017 Fee Schedule are updated from the
decision McCulloch v. Secretary of Health and Human Services. 2015 WL 5634323, at
*19.
5
See supra note 3.
6
See supra note 4.
3
b. Hours Expended
The second step in Avera is for the Court to make an upward or downward
modification based upon specific findings. 515 F.3d at 1348. The undersigned finds no
unnecessary or unreasonable entries in Mr. Shoemaker’s billing records, and therefore
finds that the hours expended are reasonable and should be awarded in full. See
generally Mot. Att’ys’ Fees.
c. Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992). Petitioners’ costs
consist of the collecting and printing of medical records. Mot. Att’ys’ Fees 21-22. A
review of these costs show them to be reasonable, and the undersigned awards them in
full.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the
undersigned finds that Petitioners are entitled to attorneys’ fees and costs. Accordingly,
the undersigned hereby awards the amount of $32,151.32,7 in the form of a check
made payable jointly to Petitioners and Petitioners’ counsel, Clifford J. Shoemaker,
of Shoemaker, Gentry & Knickelbein.
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.8
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
7
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees
for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging
or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir.
1991).
8
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