In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 23, 2019
* * * * * * * * * * * * * *
STEPHANIE HAYNES, Mother and
*
natural guardian of P.L., a minor,
* UNPUBLISHED
*
Petitioner, * No. 16-484V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Clifford J. Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA, for Petitioner.
Heather L. Pearlman, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On April 6, 2019, Stephanie Haynes (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 68). For the reasons
discussed below, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs and
awards a total of $63,883.29.
I. Procedural History
On April 18, 2016, Petitioner filed a petition in the National Vaccine Injury Compensation
Program as mother and natural guardian of P.L., a minor.2 Petitioner alleged that as a result of
receiving a meningococcal vaccine (“Menactra”) on August 1, 2014, P.L suffered autoimmune
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 Because this unpublished ruling contains a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, the 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.
1
encephalitis. On March 13, 2019, the parties filed a Proffer which I adopted as my Decision
awarding damages on March 20, 2019. Decision, ECF No. 67.
On April 6, 2019, Petitioner filed a motion for attorneys’ fees and costs. Petitioner requests
compensation for her attorney, Mr. Clifford Shoemaker, in the total amount of $71,789.74,
representing $60,322.45 in attorneys’ fees and $11,457.29 in costs. Fees App. at 1. On July 25,
2019, Petitioner filed a supplemental motion for attorneys’ fees and costs, requesting an additional
$1,109.75 in attorneys’ fees. ECF No. 73. Thus, the total amount requested is $72,899.49. Also,
pursuant to General Order No. 9, Petitioner states that she has personally incurred costs of $2.32.
Fees App. at 1.
Respondent did not file a response thereafter and Petitioner did not file a reply. 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). In this case, Petitioner was awarded
compensation pursuant to a proffer, and therefore she is 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 the following rates of compensation for work performed by her
attorneys: for Mr. Clifford Shoemaker, Petitioner requests $415.00 per hour for work performed
in 2015, $430.00 for work performed in 2016, $440.00 for work performed in 2017, $450.00 for
work performed in 2018, and $460.00 per hour for work performed in 2019; for Ms. Renee Gentry,
Petitioner requests $400.00 per hour for work performed in 2015, $424.00 for work performed in
2017, $435.00 for work performed in 2018, and $445.00 per hour for work performed in 2019;
and for Ms. Sabrina Knickelbein, Petitioner requests $350.00 per hour for work performed in 2015,
$365.00 for work performed in 2016, $378.00 for work performed in 2017, $391.00 for work
performed in 2018, and $400.00 per hour for work performed in 2019. See generally Fees App.
The rates requested herein are in conformance with what other special masters and I have
consistently awarded Shoemaker, Gentry & Knickelbein attorneys. See Nixon v. Sec’y of Health
& Human Servs., No. 13-738V, 2019 WL 1149942, at *2 (Fed. Cl. Spec. Mstr. Feb. 6, 2019);
Cianni v. Sec’y of Health & Human Servs., No. 16-1052V, slip op. at 2-3 (Fed. Cl. Spec. Mstr.
2
Sept. 21, 2018). Accordingly, no adjustment to the requested rates is required.
Turning next to the hours billed, I find that several reductions must be made. Turning first
to the billing entries for Mr. Shoemaker, I find that they suffer from vagueness, an issue which I
have previously expressed concern with regarding Mr. Shoemaker’s billing. See Nixon, 2019 WL
1149942, at *2; Cianni, slip op. at 3. Entries by Mr. Shoemaker for correspondence, for example,
simply read “Email from Renee” or “Email to and from Stephanie” or “PC w Stephanie” without
mentioning what the topic of the e-mail or phone call is, and review of filings simply read “Review
pleading” and “Review order” without describing the pleading being reviewed. Fees App. at 5-18.
Mr. Shoemaker has been warned numerous times in the past that vague billing entries make it
difficult for the presiding special master to ascertain the reasonableness of the billing entries and
overall time spent on the case. Accordingly, I will reduce Mr. Shoemaker’s billed time by 5%. The
billing records submitted show that Mr. Shoemaker billed a total of $34,866.50 in this matter.
Accordingly, this results in a reduction of $1,743.32.
More concerning are the billing entries from Ms. Knickelbein. The billing records indicate
that at the beginning of the case, Ms. Knickelbein’s work was centered around acquiring medical
records and reviewing them for completeness. After the petition was filed, Ms. Knickelbein’s tasks
switched to review of filings made by respondent and the Court, and preparation of pro forma
filings on behalf of Petitioner, such as notices of filing and the statement of completion. Upon
review of the work performed by Ms. Knickelbein in this case, I find that all of the work done by
her is that which is typically performed by a paralegal and that it is not appropriate to compensate
that work at attorney rates. I will therefore follow an approach adopted by other Special Masters
and compensate Ms. Knickelbein’s work at the top of the fee schedule range for the years in
question. See Dominguez v. Sec’y of Health & Human Servs., No. 12-378V, 2019 WL 3315270,
at *9 (Fed. Cl. Spec. Mstr. Jun. 24, 2019). This results in a reduction of $6,742.20.3
I further note that several of the billing entries of Ms. Knickelbein are duplicative with
work billed by Mr. Shoemaker for review of various filings. Fees App. at 22-29 In sum, these
entries to account for 3.3 hours billed. Accordingly, I shall reduce the final award of fees further
by $493.00. Thus, petitioner is entitled to final attorneys’ fees of $52,453.68.
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 $11,457.29. This amount consists of acquiring medical records,
postage, the Court’s filing fee, and work done by Petitioner’s expert, Dr. Yuval Shafrir. Fees App.
at 29-30. I find all the requested costs to be reasonable and typical of Vaccine Program litigation
with one exception. It appears as though Petitioner has requested an incorrect amount for
3
The reduction is delineated as follows:
2015: ($350.00 requested - $145.00 awarded) * 5.0 hours billed = $1,025.00.
2016: ($365.00 requested - $145.00 awarded) * 14.2 hours billed = $3,124.00
2017: ($378.00 requested - $148.00 awarded) * 3.4 hours billed = $782.00
2018: ($391.00 requested - $153.00 awarded) * 7.2 hours billed = $1,713.60
2019: ($400.00 requested - $156.00 awarded) * 0.4 hours billed = $97.60.
3
reimbursement of the Court’s filing fee. Compare Fees App. at 29 (requesting $430.00 for the
filing fee) with Fees App. at 31-32 (showing the amount paid for the filing fee as $400.00). Because
Petitioner’s requested costs include the higher number, I shall reduce the final award of costs by
$30.00. to account for this error. Petitioner is therefore awarded final costs of $11,427.29.
c. Petitioner’s Costs
Pursuant to General Order No. 9, Petitioner warrants that she has personally expended
$2.32 in pursuit of this litigation. This cost is for postage to mail documents to petitioner’s counsel.
Petitioner has provided adequate documentation supporting this cost. Thus, Petitioner’s cost shall
be reimbursed 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 $61,432.20
(Reduction of Fees) - ($8,978.52)
Total Attorneys’ Fees Awarded $52,453.68
Attorneys’ Costs Requested $11,457.29
(Reduction of Costs) - ($30.00)
Total Attorneys’ Costs Awarded $11,427.29
Total Attorneys’ Fes and Costs $63,880.97
Petitioner’s Costs $2.32
Total Amount Awarded $63,883.29
Accordingly, I award the following:
1) A lump sum in the amount of $63,880.97, representing reimbursement for petitioner’s
attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney,
Mr. Clifford Shoemaker.4; and
2) A lump sum in the amount of $2.32, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
4
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,” and fees for legal services rendered. Furthermore, Section 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).
4
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
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
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).
5