In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0099V
(not to be published)
CHERYL KOWAL,
Chief Special Master Corcoran
Petitioner,
v. Filed: September 14, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Kari Elizabeth Panza, R.J. Marzella & Associates, P.C., Harrisburg, PA , for Petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 18, 2019, Cheryl Kowal filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. (the
“Vaccine Act”). Petitioner alleged that her January 22, 2016 pneumococcal conjugate
vaccination (Prevnar 13) caused her to suffer an on-Table shoulder injury related to
vaccine administration. (Petition at 1-2). On May 21, 2020, a decision was issued
awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 36).
Petitioner has now filed a motion for attorney’s fees and costs, dated June 22,
2020, (ECF No. 41), requesting a total award of $19,655.62 (representing $15,880.00 in
fees and $3,775.62 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 41 at
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
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). This means the Decision 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, I agree that the identified material fits within this definition, I will redact such material from
public access.
19). Respondent reacted to the motion on June 22, 2020, stating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case,
and deferring calculation of the amount to be awarded to my discretion. (ECF No. 42).
Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s request and find a
reduction in the amount of fees to be awarded appropriate, for the reasons listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). 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 (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.3d 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 a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009). A special master need not engage 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 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Wasson, 24 C. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S., at 434.
2
ATTORNEY FEES
A. Hourly Rates
Petitioner requests the hourly rate of $300 per hour for all time billed by attorney
Kari Panza frm 2018 to 2020. (ECF No. 41 at 6). But Ms. Panza was previously awarded
the rates of $225 per hour for years 2014 – 2015, and $250 per hour for years 2015 –
2016. See Sease v Sec’y of Health v. Human Servs., No. 16-964V, 2017 WL 1376439,
(Fed. Cl. Spec. Mstr. Mar. 21, 2017).
The requested rate is within the Vaccine Program’s published range for attorneys
at Ms. Panza’s level of overall experience, albeit on the higher end of the range, and Ms.
Panza is eligible for a rate increase for more recent years. However, the Program
generally does not approve increases of the magnitude requested ($50 per year), even
for the most experienced attorneys in the Program. I will therefore reduce Ms. Panza’s
rates to $275 per hour for 2018, and $290 per hour for 2019-20, and I will award that
amount herein. This reduces the fees to be awarded by $399.00. 2
B. Administrative Time
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the attorney’s
fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health &
Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014).
“[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.”
Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). A total of 1.9 hours
was billed on tasks considered administrative including, receiving documents, forwarding
correspondence, creating the client file, and mailing documents. Examples of the tasks
include:
• December 14, 2018 (0.80 hrs) “Initial client package drafted/Mailed to
client”;
• December 27, 2018 (0.20 hrs) “Physical filed created/shelved”;
2This amount consists of ($300 - $275 = $25 x 2.8 hrs = $70) + ($300 - $290 = $10 x 32.90 hrs = $329) =
$399.00.
3
• January 8, 2019 (0.10 hrs) “FF Ciox re: invoice Gastro recs/forward for
payment”;
• January 9, 2019 (0.10 hrs) “Online payment to Ciox”; and
• February 6, 2019 (0.20 hrs) “Review/Save to file EOA Patton/enter attorney
info to needles Doc #7.”
(ECF No. 41 at 8-10).
I will therefore further reduce the amount of fees to be awarded by $336.50. 3
ATTORNEY COSTS
Petitioner is requesting $3,775.62 in overall costs, including but not limited to
medical records, shipping and copying costs. (ECF No. 41 at 14). I have reviewed all the
requested costs and find them to be reasonable, l award the requested amount in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $18.920.12 (representing $15,144.50 in fees and $3,775.62 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
This amount consists of ($290 x 0.6 hrs = $174) + ($125 x 1.3 hrs = $162.50) = $336.50.
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
4