In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1135V
Filed: September 25, 2017
UNPUBLISHED
MARK DAVID LUNDIN,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Paul D. Bekman, Bekman, Marder & Adkins, LLC, Baltimore, MD, for petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On September 13, 2016, 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 alleged that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) following influenza (“flu”) vaccinations on September 25, 2013.
On May 26, 2017, the undersigned issued a decision awarding compensation to
petitioner based on respondent’s proffer. (ECF No. 22.)
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from public access.
2National 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).
On July 10, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 27.) Petitioner requests attorneys’ fees in the amount of $17,103.60 3 and
attorneys’ costs in the amount of $1,239.01. (Id. at 1.) In compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-
pocket expenses. Thus, the total amount requested is $18,342.61.
On July 21, 2017, respondent filed a response to petitioner’s motion. (ECF No.
29.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of 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 recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
Petitioner filed no reply. However, on August 9, 2017, the undersigned ordered
petitioner to file invoices and receipts supporting the requested costs as well as an
affidavit addressing the basis for counsel’s requested rate. (ECF No. 30.) On August
30, 2017, petitioner’s counsel filed, along with the required invoices, an affidavit
explaining that this is his first vaccine case, but noting that he has been admitted to
practice law since 1972. (ECF No. 31.) Mr. Bekman stressed his quality of work in the
case as well as the fact that his typical rate for complex civil litigation is higher than what
is awarded in Vaccine Act cases. 4 (Id.)
3
Petitioner’s motion requested $19,048.30 in attorneys’ fees. This is also the total listed on counsel’s
billing records. (ECF No. 27-1, p. 4.) Upon the undersigned’s review, however, counsel’s billing records
are entirely miscalculated based on the billing rates identified (i.e. $440 per hour for Mr. Bekman and
$148 per hour for law clerks and paralegals). (Id., p. 5.) First, there are several isolated discrepancies.
For example, on February 5, 2016, Mr. Bekman billed 2 hours, but only charged $440.00, the amount due
for one hour of work. (Id., p. 1.) Mr. Bekman failed to include any dollar amount for .75 hours of billing on
February 22 and 26, 2016. (Id., p. 2.) Additionally, there are systematic errors in the billing records. For
example, Mr. Bekman consistently charged $73.34 for 0.1 hours of work, $146.66 for 0.2 hours of work,
and $220.00 for 0.3 hours of work when these billings should have been $44.00, $88.00, and $132.00
respectively. Similar errors occurred throughout the law clerk and paralegal billing as well. Upon the
undersigned’s review, only 20 out of 85 billing entries were correctly calculated. The undersigned finds
that petitioner’s counsel billed 18.65 hours in 2016 and 10.4 hours in 2017. At a requested rate of $440
per hour, this amounts to $12,782.00. Additionally, Mr. Bekman’s paralegals and law clerks collectively
billed 18.8 hours in 2016 and 10.4 hours in 2017. At a requested rate of $148 per hour, this amounts to
$4,321.60. Thus, the total amount billed in this case is $17,103.60. The undersigned expects counsel to
use greater care in future.
4 In the August 30 Scheduling Order, the undersigned ordered counsel to discuss the factors previously
discussed in McCulloch v. Sec’y of Health and Human Servs., No. 09-293V, 2015 WL 5634334, at *17
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). Citing the highest rate awarded in McCulloch ($425 per hour),
counsel averred that his rate for complex civil litigation is 20% higher. But see Garrison v. HHS, No. 14-
762V, 2016 WL 3022076 (Fed. Cl. Spec Mstr. April 29, 2016), aff’d 2016 WL 4784054, --- Fed. Cl. ---
(Fed. Cl. Aug. 17, 2016) (noting that prevailing party fee shifting paradigms are not directly comparable to
the Vaccine Act and applying an 18.3% risk premium reduction when using federal district court cases to
2
Petitioner seeks an hourly rate of $440 per hour for all of the work Mr. Bekman
performed in this case during 2016 and 2017. Additionally, petitioner requests a rate of
$148 for all paralegal and law clerk work performed during the same period. (ECF No.
27-1.) This represents the maximum compensation available under the Office of
Special Masters Attorneys’ Forum Hourly Rate Fees Schedule: 2017. 5 However, Mr.
Bekman has no prior experience with Vaccine Program cases. Based on Mr. Bekman's
minimal experience in the Vaccine Program, the undersigned finds a rate of $385.00 per
hour is appropriate for work performed prior to 2017, and $395 for work performed in
2017. See McCulloch v. HHS, 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr.
Sept. 1, 2015) (noting that vaccine attorneys with over 20 years of experience should
receive between $350 and $415 per hour, and further noting that higher rates should be
reserved for attorneys with significant vaccine experience). Accord Johnson v. HHS,
No. 15-602V, 2017 WL 4210578 (Fed. Cl. Spec. Mstr. June 26, 2017) (reducing an
attorney barred in 1972 from a requested rate of $415 per hour to $385 per hour for
work performed in 2016 due to lack of prior vaccine experience). Additionally, the
undersigned reduces the paralegal and law clerk rates to $145 for 2016. Adjusting
these rates results in a reduction of $1,550.15. 6
Additionally, the undersigned notes that in February of 2016, Mr. Bekman billed 4
hours researching the Vaccine Rules and reviewing the guidelines for practicing under
the National Vaccine Injury Compensation Program. Additionally, Mr. Bekman billed .8
hours in February and March of 2016 gathering letters of good character and preparing
his admission to the Court of Federal Claims. (ECF No. 27-1, pp. 1-2.)These 4.8 hours
are not compensable. It is well established that attorneys may not be compensated for
professional development concerning the Vaccine Program. See, e.g., Lord v. HHS,
No. 12-255V, 2016 WL 3960445, at *4 (Fed. Cl. Spec. Mstr. June 30, 2016). Thus, the
undersigned further reduces attorneys’ fees by $1,848.00. 7
determine a reasonable local rate for vaccine work). Counsel also stressed that McCulloch itself predates
the work performed in this case.
5
The undersigned notes that in the initial fee motion, counsel cited the Office of Special Masters
Attorneys’ Forum Hourly Rate Fees Schedule: 2017 as the basis for the requested rate. The 2017 Fee
Schedule made upward adjustments to the McCulloch rates consistent with the Producer Price Index for
Offices of Lawyers. However, counsel did not discuss the Office of Special Masters Attorneys’ Forum
Hourly Rate Fee Schedule: 2015-2016, which adopted the McCulloch rates for calendar years 2015 and
2016, and would therefore be applicable to the earlier work performed in this case. Under the 2015-2016
Fee Schedule, the maximum rate for an attorney with 31+ years of experience is $430 per hour and the
maximum paralegal rate is $145 per hour. Both Fee Schedules are available at:
http://www.cofc.uscourts.gov/node/2914.
6($440 per hour - $385 per hour)*18.65 hours + ($440 per hour - $395 per hour)*10.4 hours + ($148 per
hour - $145 per hour)* 18.8 hours = $1,550.15
7 4.8 hours*$385 per hour = $1,848.00
3
Finally, in light of the extensive recalculation of counsel’s billing records required
to resolve this fee application due to counsel’s erroneous billing records (see n.3,
supra), the undersigned will not compensate counsel for the two hours he billed for
“review and editing of Motion for Attorneys’ Fees and Costs.” (ECF No. 27-1, p. 4.)
Given the resulting work product, petitioner’s application fails to establish that hours
spent reviewing the application were reasonably billed. This results in a reduction of
$790.00. 8
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). For the reason described above, the undersigned GRANTS petitioner’s motion
for attorneys’ fees and costs in the reduced amount of $14,154.46.
Accordingly, the undersigned awards the total of $14,154.46 9 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Paul D. Bekman, Esq.
The clerk of the court shall enter judgment in accordance herewith. 10
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
8 $395 per hour*2 hours = $790
9 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).
10Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
4