In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 3, 2018
* * * * * * * * * * * * * *
MERYL BRAUN, * UNPUBLISHED
*
Petitioner, * No. 16-1098V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Martin J. Rubenstein, Staten Island, NY, for Petitioner.
Lisa A. Watts, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 11, 2018, Meryl Braun (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 34). For the reasons
discussed below, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs and
awards a total of $28,483.14.
I. Procedural History
On September 2, 2016, Meryl Braun filed a petition for compensation pursuant to the
National Vaccine Injury Compensation Program.2 Petitioner initially alleged that she developed
Guillan-Barré Syndrome (“GBS”) as a result of her September 11, 2013 influenza (“flu”)
vaccination. Petitioner then filed an amended petition on April 6, 2017, alleging that her GBS was
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the
ruling 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, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a
reasoned explanation for the action in this case, undersigned is required 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).
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.
one component of a systemic lupus erythematosus (“SLE”) which was caused by the same flu
vaccination. ECF No. 17. On November 13, 2017, Petitioner filed a motion for a ruling on the
record (ECF No. 28), and on April 24, 2018, I issued my entitlement decision denying
compensation. ECF No. 31. Judgment was entered on May 25, 2018.
On September 11, 2018, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for her attorney, Mr. Martin Rubenstein, in the total amount of $25,260.39,
representing $21,150.00 in attorneys’ fees and $4,110.39 in costs. Fees App. Ex. 1 at 5. Pursuant
to General Order No. 9, Petitioner indicates that she has not incurred any expenses in this case.
Fees App. Ex. 2 at 1.
Respondent reacted to the fees motion on September 24, 2018, indicating that “Respondent
is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case”
and recommending that “the special master exercise his discretion and determine a reasonable
award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 35). Petitioner did not file a reply,
but the Court issued on order on November 1, 2018, requesting that Petitioner supplement her fees
application with addition information concerning costs incurred (ECF No. 37), which Petitioner
filed on November 20, 2018. Accordingly, the matter is now ripe for adjudication.
II. Analysis
Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation, but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). I find no cause to doubt the good faith or
reasonable basis of bringing this claim, which, even though not successful, was supported by
competent expert opinion. Additionally, respondent has not objected to the good faith or
reasonable basis of the claim. Accordingly, I find that petitioners are entitled to an award of
reasonable attorneys' fees and costs.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct.
482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the
motion is filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte,
independent of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human
Servs., 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85
Fed. Cl. 313 (Fed. Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr.
22, 2008).
a. Attorneys’ Fees
Petitioner requests that her attorney, Mr. Rubenstein, be compensated for all work on this
case at a rate of $450.00 per hour irrespective of year. Fees App. Ex. 3 at 5. The subject of Mr.
Rubenstein’s rates was recently addressed substantively by another special master. See Roberts v.
Sec’y of Health & Human Servs., No. 16-1151V, 2018 WL 2772304 (Fed. Cl. Spec. Mstr. May
18, 2018). In that case, as here, the petitioner sought to have Mr. Rubenstein compensated at
$450.00 per hour for work performed between 2015 and 2018. In reducing his rates for 2015-2017,
2
the special master noted that although Mr. Rubenstein had over 40 years of overall legal
experience, his proposed rate exceeded the maximum amount contemplated by the Office of
Special Masters Attorneys’ Forum Hourly Rate Fee Schedule for all years except 2018. Id. at 3.
Accordingly, the special mater reduced Mr. Rubenstein’s rate to $430.00 per hour for 2015-16 and
$440.00 per hour for 2017, the maximum amount under the fee schedule. Id.
The special master’s analysis and outcome of Mr. Rubenstein’s rates in Roberts is well-
reasoned, and I see no cause to deviate from that rationale in the instant case. Accordingly,
Petitioner will be awarded the following rates for work performed by Mr. Rubenstein: $430.00 per
hour for work performed in 2016, $440.00 per hour for work performed in 2017, and $450.00 per
hour for work performed in 2018. The billing records indicate that Mr. Rubenstein performed
21.05 hours of work in 2016, and 22.55 hours of work in 2017. Fees App. Ex. 3 at 2-5. This results
in a total deduction of $646.50.3
Upon review of the billing entries, I find them to be reasonable. The overall number of
hours spent on this case (47.0) is reasonable, and the billing entries reflect the nature of each task
performed, the amount of time expended, and the hours billed. Respondent has also not identified
any entries as objectionable. Accordingly, no adjustment to the hours is necessary.
b. Attorneys’ 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 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $4,510.39, covering the filing fee, postage, medical records, and
the expert services of Dr. Arthur Brawer. Fees App. Ex. B at 2. At the time petitioner filed her
motion for fees and costs, she did not include any supporting documentation for the requested costs
– accordingly, on November 1, 2018, I ordered petitioner to supplement her motion for fees and
costs with additional proof, such as invoices or receipts, for costs incurred. Order, ECF No. 36.
Petitioner’s provides some clarity as to the costs incurred in this case, but the information
received is still largely deficient with respect to what is prescribed by the Guidelines for Practice
Under The National Vaccine Injury Compensation Program (“Guidelines”). 4 Specifically
concerning costs, the Guidelines state that “[a] list of costs incurred by counsel and/or advanced
under the petition, e.g., amounts paid for copying records and amounts for travel, along with
supporting documentation, should accompany the application.” Id. This language makes clear that
a mere list of costs incurred is not enough to automatically warrant recovery – there must be some
further proof of those costs included which allows the Special Master to assess their
reasonableness.
In the instant case, petitioner has substantiated some of the requested costs, but not all of
them. Along with her supplemental filing, petitioner has included a new list of costs incurred along
3
$421.00 was reduced as a result of the 2016 rate adjustment, and $225.50 was reduced as a result of the 2017 rate
adjustment.
4
The Guidelines are available at
http://www.cofc.uscourts.gov/sites/default/files/18.11.05%20Vaccine%20Guidelines.pdf.
3
with an affidavit from Mr. Rubenstein, explaining that this new list is an “Account Quick Report
dated August 29, 2018, attached as exhibit “A”, which itemizes all of the expenses incurred, the
date upon which the date of the expense was incurred, the check number, the name of the payee,
thename of the matter and the account from which the funds were drawn.” Mot. to Supplement,
ECF No. 27, at 1. Included in the supplement were also photocopies of three checks – one payment
for medical records and two payments to Dr. Brawer.
While the newly submitted Account Quick Report list provides more detail on the costs
than the original list of costs attached to the motion for fees and costs, it is ultimately still a list,
and on its own cannot properly substantiate the requested costs. Merely including the information
that the cost was paid for via check and the number of that check does not cure the original
deficiency that petitioner’s list suffered from. Indeed, petitioner has included copies of three of the
checks used to pay for costs, which is precisely the kind of proof petitioners are encouraged to
provide to substantiate their costs. If petitioner was able to provide proof for these three costs, why
could she not provide copies of all payment checks in this matter, especially since it is warranted
that all costs were paid for via check?
For these reasons, I shall not reimburse petitioner for the costs which were not supported
by adequate documentation. This results in a reduction of $50.11. Upon review, I find the
remaining costs to be adequately supported and reasonable in amount, and will thus award them
in full.
III. Conclusion
In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $21,150.00
(Total Reduction from Rate Adjustment) - $646.50
Total Attorneys’ Fees Awarded $20,503.50
Attorneys’ Costs Requested $4,510.39
(Reduction of Costs) - $50.11
Total Attorneys’ Costs Awarded $4,460.28
Total Amount of Attorneys’ Fees and Costs $24,963.78
Accordingly, I award the a lump sum in the amount of $24,963.78, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to
petitioner and her attorney, Mr. Martin Rubenstein.
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.5
5
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
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
5