The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
TAMMY BRANNAN *
* No. 20-0486V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: June 12, 2024
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Bradley S. Freedberg, Bradley S. Freedberg, P.C., Denver, CO, for Petitioner.
Emilie Williams, United States Dep’t of Justice, Washington, DC, for Respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Tammy Brannan’s motion for final
attorneys’ fees and costs. She is awarded $67,433.34.
* * *
On April 22, 2020, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccination she received on September 16,
2019, which is contained in the Vaccine Injury Table, 42 C.F.R. 100.3(a), caused
1
Because this published decision 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 (2018) (Federal
Management and Promotion of Electronic Government Services). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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.
her to suffer a shoulder injury related to vaccine administration (SIRVA). After
respondent contested entitlement based upon the location of petitioner’s symptoms
and lack of limited range of motion, petitioner submitted a letter from Shivaun
Finn Hoyt, D.O., who assessed her as exhibiting normal range of motion on
January 6, 2021, and an expert report from Dr. Gurney Fields Pearsall, Jr., M.D.,2 a
family practitioner. Exhibits (Exs.) 17-18. Thereafter, the parties engaged in
settlement discussions and on August 24, 2023, a stipulation was filed, which the
undersigned adopted as his decision awarding compensation on August 25, 2023.
2023 WL 6060385.
On June 29, 2023, petitioner filed a motion for final attorneys’ fees and costs
(“Fees App.”). Petitioner requested attorneys’ fees of $73,048.50 and attorneys’
costs of $605.54 for a total request of $73,654.04. Id. at 2. Pursuant to General
Order No. 9, counsel for petitioner represents that there are no personal incurred
any costs related to the prosecution of this case. Id.
Approximately one month later, on July 25, 2023, petitioner filed a
supplemental motion, requesting an additional $643.75 in fees for work performed
July. Pet’r’s Mot. to Supplement. On October 30, 2023, respondent filed a response
to petitioners’ motion. Resp’t’s Resp. Respondent argues that “[n]either the
Vaccine Act nor Vaccine Rule 13 requires respondent to file a response to a
request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1.
Respondent adds, however that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Id at 2. Additionally, he
recommends “that the Court exercise its discretion” when determining a reasonable
award for attorneys’ fees and costs. Id. at 3.
On February 7, 2024, petitioner filed a status report “clarify[ing] a
misstatement in the application for attorney fees and costs.” ECF No. 89. In that
status report, petitioner requests an additional $12,800.00 in expert costs,
representing 32.0 hours of work at an hourly rate of $400.00. Petitioner now
requests attorneys’ fees of $73,692.25 and attorneys’ costs of $13,405.54 for a total
request of $87,097.79. Respondent did not file a response thereafter.
* * *
2
Dr. Pearsall appears to be the father of Mr. Freedberg’s co-counsel in this case, Gurney
F. Pearsall, III.
2
Because petitioner received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates for the work of her counsel, Bradley
S. Freedberg and his associate counsel, Gurney F. Pearsall, III:
Bradley S. Freedberg Gurney F. Pearsall, III
2020 $410 $255
2021 $455 $275
2022 $480 $300
2023 $515 $325
3
Fees App. at 1-2. All hourly rates requested for work performed by Mr. Freedberg
in 2020-2023 and by Mr. Pearsall in 2020 and 2022-2023 are consistent with what
counsel has previously been awarded for their Vaccine Program work, and the
undersigned finds them to be reasonable herein for work performed in the instant
case. See Comeau v. Sec’y of Health & Human Servs., No. 19-198V, 2021 WL
3053038 (Fed. Cl. Spec. Mstr. June 15, 2021); Ward v. Sec’y of Health & Human
Servs., No. 19-1621V, 2021 WL 3408511 (Fed. Cl. Spec. Mstr. June 30, 2021);
Walker v. Sec’y of Health & Human Servs., No. 21-1318V, 2023 WL 8946623
(Fed. Cl. Spec. Mstr. Jan. 8, 2023).
Regarding Mr. Pearsall’s 2021 hourly rate, attorneys’ fees have been
awarded utilizing an hourly rate of $270, $5 less than the $275 hourly rate
requested in this case.3 See Comeau, 2021 WL 3053038, at *2; Ward, 2021 WL
3408511, at *2. Application of this lower rate results in a reduction of $157.50.4
Furthermore, a review of the billing records reveals multiple entries
involving travel time5 and tasks that are considered paralegal in nature6 were billed
3
The greater hourly rate of $275 was employed in two cases, due to an error made when
quoting the hourly rates utilized in Comeau and Ward. See Rybicki v. Sec’y of Health & Human
Servs., No. 20-332V, 2023 WL 2440377, at *2 (Fed. Cl. Spec. Mstr. Feb. 7, 2023); Key v. Sec’y
of Health & Human Servs., No. 20-379V, 2023 WL 2440863, at *2 (Fed. Cl. Spec. Mstr. Feb. 7,
2023).
4
($275 - $270) x 31.5 hrs. = $157.50
5
In the Vaccine Program, special masters traditionally have compensated time spent
traveling when no other work was being performed at one-half an attorney’s hourly rate. See
Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl.
Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009
WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human
Servs., No. 01-61V, 2006 WL 3419805, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However,
special masters should not use this rule as standard practice but rather “[e]ach case should be
assessed on its own merits.” Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791
(2010). “Even an automatic 50% award may be too high for an undocumented claim, given the
possibility that an attorney may use the travel time to work on another matter or not to work at
all while traveling.” Id.
6
Attorneys may be compensated for paralegal-level work, but only at a rate that is
comparable to that of a paralegal. See, e.g., Doe/11 v. Sec’y of Health & Human. Servs., No.
XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v.
Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V,
2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health &
Human Servs., No. 99-382V, 2009 WL 3319818, at *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009);
Turpin v. Sec’y of Health & Human Servs., No. 99-535, 2008 WL 5747914, at *5-7 (Fed. Cl.
4
at the attorneys’ hourly rates. Fees App. Ex. B. Although at least eleven entries -
totaling 7.15 hours,7 involve only paralegal tasks, numerous other entries describe
both attorney and paralegal tasks. E.g., id. at 13 (entry dated 3/15/21). And the
entry describing travel time related to a visit to petitioner spanned 2.7 hours of time
that included the visit itself. E.g., id. at 7 (entry dated 1/21/20). Such block billing
makes it is difficult to ascertain the amount of time which should have been billed
at these reduced hourly rates. The undersigned will therefore address the matter,
along with further reductions in amount of hours billed in the next section.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and finds several
issues which need to be addressed further. Petitioner seeks attorneys’ fees for work
performed by Mr. Freedberg and Mr. Pearsall that is generally not reimbursed in
vaccine cases such as work that is considered secretarial in nature,8 time spent
performing basic research,9 and excessive or duplicative work.10 Fees App. Ex. B.
Spec. Mstr. Dec. 23, 2008).
7
These entries are as follows: 1/24/20 (entries for both Mr. Pearsall and Mr. Freedberg),
3/23/20, 4/8/20, 10/7/20, 10/15/20, 11/9/20, 2/3/21, 5/5/21, 8/4/21. Fees App. at 7, 10-14.
8
It is clearly established that secretarial work “should be considered as normal overhead
office costs included within the attorneys’ 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).
9
“[I]t is inappropriate for counsel to bill time for educating themselves about basic
aspects of the Vaccine Program.” Matthews v. Sec’y of Health & Human Servs., No. 14-1111V,
2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may
not ethically bill his client to learn about an area of law in which he is unfamiliar. If an attorney
may not bill his client for this task, the attorney may also not bill the Program for this task.”
Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl.
Spec. Mstr. July 13, 2007).
10
The undersigned has previously reduced the fees paid to petitioners due to excessive
5
For example, Mr. Freedberg spent 0.4 and 0.2 hours retrieving, reviewing, and
paying bills. Id. at 14 (entries dated 8/3/21 and 9/30/21). And Mr. Freedberg spent
1.20 and 1.25 hours researching SIRVA cases involving expert opinion, the usual
length of a motion for a ruling on the record, and the amount of time needed for
resolution. Id. at 15-16 (entries dated 2/10/22 and 8/20/22). Furthermore, the
billing records contained numerous entries involving time spent by both Mr.
Freedberg and Mr. Pearsall discussing the merits of petitioner’s case and
coordinating schedules and tasks. E.g., id. at 7, 10 (entries dated 1/6/20 showing
1.0 hours of this time). On multiple occasions, Mr. Freedberg and Mr. Pearsall
have been informed of these deficiencies in their billing records. E.g., Hergett v.
Sec’y of Health & Human Servs., No. 17-2008V, 2020 WL 1080295 at *4 (Fed.
Cl. Spec. Mstr. Feb. 4, 2020); Mackey v. Sec’y of Health & Human Servs., No. 16-
1289V, 2020 WL 2596801, at *7 (Fed. Cl. Spec. Mstr. May 10, 2018); Comeau,
2021 WL 3053038, at *2; Ward, 2021 WL 3408511, at *2; Rybicki, 2023 WL
2440377, at *2-3.
Due to the extensive block billing found throughout the billing records
submitted in this case, it is difficult to ascertain the exact amount of time involved
in each of the mentioned categories. Block billing or billing large amounts of time
without sufficient detail as to what tasks were performed, is clearly disfavored in
the Program. See Broekelschen v. Sec’y of Health & Human Servs., 07-137V,
2008 WL 3903710 (Fed. Cl. Spec. Mstr. Dec 15, 2006). Rather, the Vaccine
Program’s Guidelines for Practice state that “[e]ach task should have its own line
entry indicating the amount of time spent on that task.” Several tasks lumped
together with one-time entry impedes assessment of the reasonableness of the
request.
In evaluating a motion for attorney’s fees and costs, special masters “need
not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563
U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). Instead, in appropriate
circumstances they may make reasonable, across-the-board percentage
adjustments. E.g., Raymo, 129 Fed. Cl. at 703-04. The undersigned finds a
and duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016 WL
447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 percent due to
excessive and duplicative billing); Raymo v. Sec’y of Health & Human Servs., No. 11-654V,
2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced overall fee award by 20
percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). The undersigned and other special
masters have previously noted the inefficiency that results when cases are staffed by multiple
individuals and have reduced fees accordingly. See Sabella v. Sec’y of Health & Human Servs.,
86 Fed. Cl. 201, 209 (2009).
6
reduction of twenty percent is warranted in this case. This results in a further
reduction of $14,706.95.11 Petitioner is therefore awarded final attorneys’ fees of
$58,827.80.
C. Costs Incurred
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), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner’s requests a total of
$13,405.54 in attorneys’ costs. Fees App. at 2, ECF No. 89. This amount is
comprised of acquiring medical records, the Court’s filing fee, and work performed
by petitioner’s expert, Dr. Gurney F. Pearsall, a family practitioner.
For the work performed by Dr. Pearsall, petitioner requests a total of
$12,800.00, comprised of 32.0 hours of work billed at $400.00 per hour. ECF No.
89. The undersigned was unable to find any prior instances of Dr. Pearsall
performing Vaccine Program work, thus petitioner would have been well served to
provide some evidence regarding a reasonable rate for general practitioners. A
general practitioner was compensated at a rate of $250 per hour. Wynne v. Sec’y
of Health & Hum. Servs., No. 17-1908V, 2022 WL 1869355, at *3 (Fed. Cl. Spec.
Mstr. May 3, 2022). A rate of $250.00 per hour is reasonable (and perhaps
generous) for someone who lacks specialized medical knowledge, who does not
teach at medical schools, and who has authored only two articles published in
journals.
Dr. Pearsall has requested compensation for 32 hours. ECF No. 89-1 at 2.
Dr. Pearsall has lumped together many activities within the same day. Experts are
held to the same reasonableness standards for their fees as attorneys, and detailed
information is necessary for the Court to evaluate whether the expert’s work was
reasonable and not duplicative. As such, Dr. Pearsall should identify his activities
with more precision going forward. However, because Dr. Pearsall has not
previously submitted invoices, the number of hours is accepted as reasonable. A
reasonable amount of compensation for Dr. Pearsall is $8,000.00.12
11
$73,534.75 x 0.20 = $14,706.95.
12
$250.00 per hour multiplied by 32 hours = $8,000.00.
7
Petitioner has provided adequate documentation supporting the requested
costs and all are reasonable in the undersigned’s experience. Petitioner is therefore
awarded final attorneys’ costs of $8,605.54.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $67,433.34 (representing
$58,827.80 in attorneys’ fees and $8,605.54 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Bradley
S. Freedberg.
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.13
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
13
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
8