In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 19, 2021
* * * * * * * * * * * * * *
KRISTIE ROBY, * No. 15-125V
* Special Master Sanders
Petitioner, *
* UNPUBLISHED
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner;
Lynn C. Schlie, United States Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On February 9, 2015, Kristie Roby (“Petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program.2 42 U.S.C. §300aa-10 et seq. (2012).
Petitioner alleged that she received a combined vaccination for hepatitis A and hepatitis B on June
27, 2013 that caused her to suffer pain, fatigue, and weakness. Petitioner filed an amended petition
on April 22, 2016, alleging that the vaccination “triggered scleroderma with accompanying
symptoms of pain, fatigue, and weakness.” Am. Pet. at 2, ECF No. 42. Petitioner revised her claim
again in her post-hearing memorandum, alleging that she developed undifferentiated connective
tissue disease and sine scleroderma as a result of the hepatitis B component of the vaccine. Pet’r’s
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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
National 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).
Post-Hr’g Br. at 1–2, ECF No. 87. On September 10, 2020, the undersigned issued her decision
dismissing the petition. ECF No. 99.
On October 20, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 101
(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $99,497.68,
representing $69,021.05 in attorneys’ fees, $29,340.56 in attorneys’ costs, and $1,136.07 in costs
personally incurred by Petitioner. Fees App. at 4. Respondent responded to the motion on October
22, 2020, stating that Respondent “is satisfied that the statutory requirements for an award of
attorneys’ fees and costs are met in this case” and asking the Court to “exercise its discretion and
determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 102.
Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved 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, 1348 (Fed.
Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by
‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings. Id. at 1348.
It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3
F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in
a line-by-line analysis of petitioners' fee application. Broekelschen v. Sec'y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec'y of Dep't
of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev'd on other grounds and aff'd in relevant
part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to
reduce hourly rates and the number of hours claimed in attorney fee requests ... Vaccine program
special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton,
3 F.3d at 1521.
a. Hourly Rate
The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee
Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3
Petitioner requests the following hourly rates for the work of her counsel: for Mr. Richard
Gage, $299.64 per hour for work performed in 2014, $300.00 per hour for work performed in
2015, $311.00 per hour for work performed in 2016, $318.00 per hour for work performed in 2017,
$326.00 per hour for work performed in 2018, $338.00 per hour for work performed in 2019, and
$350.00 per hour for work performed in 2020; for Ms. Kristen Blume, $251.00 per hour for work
performed in 2018 and $338.00 per hour for work performed in 2019; for Mr. Donald Gerstein,
$251.00 per hour for work performed in 2014; for Mr. James Mitchell, $251.00 per hour for work
performed in 2016; and for Ms. Kristen Reiman, $200.00 per hour for work performed in 2017.
The rate requested for Ms. Reiman exceeds what the undersigned has previously awarded
her for work in 2017. Anderson v. Sec’y of Health & Human Servs., No. 16-1099V, 2020 WL
6055038, at *2 (Fed. Cl. Spec. Mstr. Sept. 9, 2020) (awarding Ms. Reiman $150.00 per hour for
work in 2017). Accordingly, Ms. Reiman’s work in this case will be compensated at the same
hourly rate, resulting in a reduction of $30.00.
b. Reasonable Number of Hours
Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
After reviewing the billing records, the undersigned finds that counsel included entries that
are duplicative and excessive due to multiple attorneys and paralegals billing attending the same
conferences/office meetings. Upon review, a reasonable reduction for these hours is $500.00.
Petitioner is therefore awarded final attorneys’ fees of $68,491.05.
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
c. Attorney Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $29,340.56 in attorneys’ costs, comprised of acquiring medical records, postage, the
Court’s filing fee, costs associated with travel to the entitlement hearing in Washington, DC, and
work performed by Petitioner’s expert, Dr. Vera Byers. Fees App. at 69-72. Petitioner has provided
adequate documentation of all these expenses and they appear largely reasonable for the work
performed in this case. However, the submitted documentation reflects that Dr. Byers traveled to
the entitlement hearing by first class airfare. Fees App. at 105. The Court has previously declined
to compensate petitioners for first-class airfare, business-class train fare, and Acela Express train
fare. See Tetlock v. Sec'y of Health & Human Servs., No. 10-56V, 2017 WL 5664257, at *6 (Fed.
Cl. Spec. Mstr. Nov. 1, 2017). The undersigned will therefore reduce Dr. Byers’ airfare by 50%,
resulting in a reduction of $1,128.30. Petitioner is therefore awarded final attorneys’ costs of
$28,212.26.
d. Petitioner’s Costs
Pursuant to General Order No. 9, petitioner states that she has personally incurred costs of
$1,136.07 in pursuit of her claim. Fees App. at 116. These costs are associated with travel to attend
the entitlement hearing and are reasonable in the undersigned’s experience. Petitioner shall
therefore be fully reimbursed.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. Based on the above analysis, the
undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows:
Attorneys’ Fees Requested $69,021.05
(Reduction to Fees) - ($530.00)
Total Attorneys’ Fees Awarded $68,491.05
Attorneys’ Costs Requested $29,340.56
(Reduction of Costs) - ($1,128.30)
Total Attorneys’ Costs Awarded $28,212.26
Total Attorneys’ Fees and Costs $96,703.31
Petitioner’s Costs $1,136.07
Total Amount Awarded $97,839.38
Accordingly, the undersigned awards the following:
1) a lump sum in the amount of $96,703.31, representing reimbursement for
Petitioner’s attorneys’ fees and costs, in the form of a check payable to Petitioner
and Petitioner’s counsel, Mr. Richard Gage; and
2) a lump sum in the amount of $1,136.07, representing reimbursement for
Petitioner’s costs, in the form of a check payable to Petitioner.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.