In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: March 6, 2018)
* * * * * * * * * * * * * * * UNPUBLISHED
Z.H., a Minor, by her Parents and Natural *
Guardians, JEFF HOLMES and *
CHRISTAL HOLMES, *
* No. 16-123V
Petitioners, *
v. * Chief Special Master Dorsey
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * *
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for petitioners.
Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On January 27, 2016, Jeff and Christal Holmes (“petitioners”) filed a petition for
compensation in the National Childhood Vaccine Injury Program2 on behalf of their minor child,
Z.H. Petitioners alleged that Z.H. suffers from amplified pain syndrome (“APS”) as a result of
the influenza vaccination she received on February 1, 2013. Petition at ¶¶ 5, 14. On July 3,
2017, the undersigned issued a decision based on the parties’ stipulation, awarding petitioners a
lump sum of $110,000.00. Decision dated July 3, 2017 (ECF No. 43).
1
This decision will 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 (2012). This means the
Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. §
300aa-12(d)(4)B), however, the parties may objection 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 files 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.A. § 300aa.
1
On November 29, 2017, petitioners filed a motion for attorneys’ fees and costs,
requesting $28,366.35 in attorneys’ fees and $7,680.16 in costs, for a total of $36,046.51.
Petitioners’ Application (“Pet. App.”) dated Nov. 29, 2017 (ECF No. 47). In accordance with
General Order #9, petitioners filed a signed statement indicating that they did not incur any
personal costs. Id. at 2.
On December 13, 2017, respondent filed a response to petitioners’ motion for attorneys’
fees and costs. Respondent’s Response (“Resp.”) dated Dec. 13, 2017 (ECF No. 48).
Respondent did not raise any objections and deferred to the undersigned’s discretion to
determine an appropriate award of attorneys’ fees and costs. Id. at 3.
This matter is now ripe for adjudication on petitioners’ motion for attorneys’ fees and
costs. For the foregoing reasons, the undersigned GRANTS petitioners’ motion for attorneys’
fees and costs and awards a total of $34,574.61.
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(3)(1).
Petitioners in this case were awarded compensation pursuant to a stipulation, and therefore they
are entitled to an award of reasonable attorneys’ fees and costs.
a. Reasonable Attorneys’ Fees
The Federal Circuit has approved the use of 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, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first
determines “an initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of
hours reasonable 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 & Human Servs., 85
Fed. Cl. 313, 316-18 (Fed. Cl. 2008). Counsel should not include in their fee requests hours that
are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human
Servs., 3 F.2d 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] 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 the petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (Fed. Cl. 2009). A special master need not engage
2
in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v.
Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).
i. Hourly Rates
Petitioner requests hourly rates for Mr. Shoemaker as follows: $415.00 per hour for work
performed in 2015, $430.00 per hour for work performed in 2016, and $440.00 per hour for work
performed in 2017. Pet. App. at 1-6. Ms. Gentry requests hourly rates of $415.00 per hour for
work performed in 2016 and $430.00 per hour for work performed in 2017. Id. at 6-9. Ms.
Knickelbein requests $350.00 per hour for work performed in 2015, $365.00 per hour for work
performed in 2016, and $378.00 per hour for work performed in 2017. Id. at 10-13.
With the exception of Ms. Gentry’s 2017 hourly rate, the undersigned finds all of
petitioner’s requested hourly rates reasonable, as they fall within the Office of Special Masters’
2015-2017 Fee Schedules.3 However, Ms. Gentry’s 2017 hourly rate of $430.00 per hour
requires adjustment. Ms. Gentry has been practicing law for approximately 22 years and has
significant experience in the Vaccine Program. She falls into the category of attorneys with 20-
30 years of legal experience, for which the 2017 fee range is $358.00 to $424.00 per hour. Ms.
Gentry’s rate of $430.00 per hour for work performed in 2017 is thus excessive and will be
adjusted to $424.00.4 This results in a decrease of $56.40 to petitioners’ fee application.5
ii. Time Billed
While petitioners are entitled to an award of attorneys’ fees and costs, the undersigned
finds that a reduction in the number of hours billed by petitioners’ counsel is appropriate
because counsel requests compensation at an attorney’s hourly rate for paralegal work, and
because counsel’s billing records contain numerous entries which are duplicative, as work was
performed by three senior law firm partners. Because multiple attorneys worked on the case
simultaneously, many of the billing entries are excessive and duplicative.
For these reasons, and after carefully reviewing petitioners’ application, the
3
The 2015-2016 Hourly Rate Fee Schedule can be accessed at:
www.uscfc.uscourts.gov/sites/.../Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 2017
Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf.
4
The undersigned notes that counsel has overbilled their hourly rates in previous applications for
attorneys’ fees and costs, which were denied. In the future, counsel should refrain from
requesting hourly rates higher than those listed in the Office of Special Masters’ Fee Schedules.
See Bookey v. Sec’y of Health & Human Servs., 13-26V, 2017 WL 2544892, at *2 (Fed. Cl.
Spec. Mstr. May 18, 2017); Meramo v. Sec’y of Health and Human Servs., 15-1234V, 2017 WL
4321084 (Fed. Cl. Spec. Mstr. Sept. 1, 2017).
5
Ms. Gentry billed a total of 9.4 hours of work on the case in 2017. The hourly rate for these
hours was reduced from $430.00 to $424.00.
3
undersigned reduces petitioners’ attorneys’ fees award. In making reductions, a line-by-line
evaluation of the fee application is not required. Wasson, 24 Cl. Ct. at 484, rev’d on other
grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Special masters may rely on
their experience with the Vaccine Act and its attorneys to determine the reasonable number of
hours expended. Id. Just as “[t]rial courts routinely use their prior experience to reduce hourly
rates and the number of hours claimed in attorney fee requests . . . [v]accine program special
masters are also entitled to use their prior experience in reviewing fee applications.” Saxton
v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
1. Paralegal Time
It is well established that attorneys who bill for performing non-attorney-level work
must appropriately reduce their hourly rate to reflect that of a legal secretary or paralegal. J.M.
et al., 2016 WL 720969 at *5. After carefully reviewing petitioners’ application for fees and
costs, the undersigned finds that many of the entries billed by Ms. Knickelbein at her attorney
hourly rate are more appropriately classified as paralegal time. For example, Ms. Knickelbein
billed time to check medical records for completeness, make telephone calls to medical
providers, and to prepare exhibits. At least two hours of attorney time billed by Ms.
Knickelbein is more appropriately characterized as paralegal work.6
2. Duplicative Billing Entries
The undersigned has previously found it reasonable to reduce attorneys’ fees awards
due to duplicative billing. See Lord v. Sec’y of Health & Human Servs., No. 12-255V, 2016
WL 3960445 (Fed. Cl. Spec. Mstr. June 30, 2016); Ericzon v. Sec’y of Health & Human
Servs., No. 10-103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016); Sexton v. Sec’y
of Health & Human Servs., No. 99-453V, 2015 WL 7717209 (Fed. Cl. Spec. Mstr. Nov. 9,
2015); J.M. et al., 2016 WL 720969; Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.
201, 214-15 (2009) (affirming the special master’s reduction of fees for overstaffing where
three attorneys from two different firms worked on a case together). The undersigned and
other special masters have previously noted the inefficiency that results when multiple
attorneys work on one case.
The undersigned finds some of petitioners’ requested fees unreasonable, unnecessary,
and duplicative. Three law firm partners worked on petitioners’ case, including Mr.
Shoemaker, Ms. Gentry, and Ms. Knickelbein. When looking closely at petitioners’
application, the undersigned notes that much of the time billed by Mr. Shoemaker and Ms.
Knickelbein is duplicative, as they were both billing time for reviewing medical records,
orders, and status reports.7 Petitioners have not provided a sufficient explanation as to why
the involvement of three law firm partners in a single case is necessary.
6
See Pet. App. at 10-12.
7
Compare Pet. App. at 3-4 (Mr. Shoemaker’s time) with Pet. App. at 12-13 (Ms. Knickelbein’s
time) (indicating that Mr. Shoemaker and Ms. Knickelbein both billed for reviewing orders,
pleadings, and billed time for emailing each other about these documents).
4
The undersigned has previously found that the reviewing of documents by multiple
attorneys leads to excessive billing. See Lord, 2016 WL 3960445, at *7; Cozart v. Sec’y of
Health & Human Servs., No. 00-590V, 2016 WL 5766359 (Fed. Cl. Spec. Mstr. Sept. 7,
2016). Similar to the law firm’s practices in Lord and Cozart, the attorneys in this case billed
excessive hours to review court orders and filing notifications. Petitioners’ fee application
also contains entries in which attorneys explicitly billed time for performing the same tasks. In
petitioners’ fee application, there are at least 49 entries, totaling over 5 hours, in which
attorneys billed time to review orders and notifications in this case.8 Multiple attorneys
reviewed the same orders and notifications and all billed time for doing so. Billing records
further show that Mr. Shoemaker spent at least 2.3 hours reviewing medical records and that
Ms. Gentry spent at least 7.5 hours reviewing medical records.9 Such duplicative review is
unnecessary and excessive.
Petitioners’ counsel also billed excessive time for intra-office communications,
including numerous emails and intra-office discussions. All three partners have multiple
entries on their time sheets for sending emails to each other and to support staff. For example,
at least 42 of Mr. Shoemaker’s billing entries are related to emailing or otherwise discussing
the case with Ms. Gentry, Ms. Knickelbein, and/or support staff.10
Other special masters as well as the undersigned have reduced fee awards for excessive
and duplicative intraoffice communication. See Lord, 2016 WL 3960445, at *7; Ericzon, 2016
WL 447770, at *4; Austin v. Sec’y of Health & Human Servs., No. 10-362V, 2013 WL
659574, at *14 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (Special Master Vowell deducted fees for
excessive intra-office communication in a case where seven attorneys at CHCC billed for
attending conferences and drafting memoranda about the case); Soto v. Sec’y of Health &
Human Servs., No. 09-897V, 2011 WL 2269423, at *6-8 (Fed. Cl. Spec. Mstr. June 7, 2011)
(Special Master Millman reduced CHCC’s fees for intra-office communications and
meetings); Carcamo v. Sec’y of Health & Human Servs., No. 97-483V, 2011 WL 2413345, at
*7 (Fed. Cl. Spec. Mstr. May 20, 2011) (Special Master Millman reduced fees when two
attorneys at the Law Offices of Dale K. Galipo billed for the same meetings with a client).
For these reasons, the undersigned reduces petitioners’ fee application by five percent, or
$1,415.50.
b. Reasonable Costs
Petitioners request costs in the amount of $7,680.16, which includes expenses such as
payment of medical records, photocopies, and the filing fee, as well as attorneys’ costs for
preparing the guardianship order and retaining a guardian ad litem. Pet. App. at 13-14.
8
See Pet. App. at 3-6, 11-13.
9
See Pet. App. at 2, 6-7.
10
See Pet. App. at 1-6.
5
After reviewing petitioners’ expenses, the undersigned finds all costs reasonable and will
reimburse them in full.
II. Conclusion
Based on all of the above, the undersigned finds that petitioners are entitled to a
reimbursement of attorneys’ fees and costs. The award is calculated as follows:
Attorneys’ Fees
Requested: $28,366.35
Hourly Rate Adjustment: ($56.40)
5% Reduction: ($1,415.50)
Total Fees Awarded: $26,894.45
Costs
Requested: $7,680.16
Reductions: ($0.00)
Total Costs Awarded: $7,680.16
Accordingly, the undersigned awards a lump sum in the amount of $34,574.61,
representing reimbursement for attorneys’ fees and costs, in the form of a check jointly
payable to petitioners, Mr. Jeff and Mrs. Christal Holmes, and the law firm of Shoemaker,
Gentry, and Knickelbein.
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.11
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
11
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
6