The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0001V
SHERI ESTERS,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 29, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 4, 2021, Sheri Esters filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”) alleging that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
September 19, 2019. Petition at 1. On December 13, 2023, I issued a decision awarding
damages to Petitioner, based on the Respondent’s proffer. ECF No. 43.
1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, 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 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.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter,
for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph
of 42 U.S.C. § 300aa (2018).
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $44,929.14 (representing $42,023.60 for fees and $2,905.54 for costs). Petitioner’s
Application for Attorneys’ Fees and Costs filed Dec. 14, 2023, ECF No. 47. In accordance
with General Order No. 9, counsel for Petitioner represents that Petitioner incurred no
out-of-pocket expenses. Id. at 1.
Respondent reacted to the Motion on January 3, 2024, stating that he is satisfied
the statutory requirements for an award of attorneys’ fees and costs have been met in
this case, but deferring resolution of the amount to be awarded to my discretion. ECF
No.48. Petitioner did not file a reply thereafter.
Having reviewed of the billing records submitted with Petitioner's requests, I find a
reduction in the amount of fees and costs to be awarded appropriate, for the reason listed
below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs to
successful claimants. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. 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 & Hum. Servs., 24 Cl.
Ct. 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 Cl. Ct. at 484 n.1.
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
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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.
ATTORNEY FEES
The requested hourly rates for work performed in this matter are reasonable and
consistent with what has previously been awarded for work these attorneys have
performed for other petitioners. In addition, Mr. Zgheib properly bills time spent performing
tasks that are typically performed by a paralegal using a lower rate.
Regarding the time billed, I deem the total amount of time devoted to briefing
entitlement to be excessive. See Petitioner’s Motion for a Ruling on the Record, filed Jan.
16, 2023, ECF No. 32; Petitioner’s Reply to Respondent’s Response to Petitioner’s
Motion for Ruling on the Record, filed Mar. 15, 2023, ECF No. 35. Petitioner’s counsel
expended approximately 15.0 hours drafting the entitlement brief and 17.5 hours drafting
the reply brief, totaling 32.53 hours. ECF No. 47-1 at 14-17.
It is unreasonable for counsel to spend so much time briefing the issue of
entitlement in this case, where the issues presented are not complex. I have identified
numerous cases (which may reasonably be compared to time spent in this matter), 4 in
which attorneys have accomplished this task in about half the time.5 See, e.g., Graczyk
v. Sec’y of Health & Hum. Servs., No. 21-0376V (Feb. 9, 2024) (5.8 and 8.3 hours billed
for drafting an entitlement brief and responsive entitlement brief, respectively); Sisneros
v. Sec’y of Health & Hum. Servs., No. 20-2070V (Feb. 8, 2024) (0.8 and 10.5 hours billed
for drafting an entitlement brief and responsive entitlement brief, respectively); Strand v.
Sec’y of Health & Hum. Servs., No. 20-0365V (Feb. 5, 2024) (7.9 and 7.2 hours billed for
drafting an entitlement brief and a responsive entitlement brief, respectively); Griswold v.
Sec’y of Health & Hum. Servs., No. 19-1674V (May 30, 2024) (5.0 and 2.0 hours billed
for drafting an entitlement brief and responsive entitlement brief, respectively); McCallum
v. Sec’y of Health & Hum. Servs., No. 19-1991V (May 19, 2023) (8 hours billed for drafting
3 This total is calculated as follows: 32.5 hours billed on 1/4/23, 1/5/23, 1/10/23, 1/11/23, 1/12/23, 1/16/23,
2/27/23 (two entries), 3/1/23, 3/2/23, 3/3/23, and 3/15/23, by Jimmy Zgheib, at a rate of $360.
4 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are
excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993).
5 These decisions can be found on the United States Court of Federal Claims website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited Mar. 24, 2024).
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an entitlement brief); Weso v. Sec’y of Health & Hum. Servs., No. 19-0596V (May 16,
2024) (6.0 and 1.1 hours billed for drafting an entitlement brief and responsive entitlement
brief, respectively).
The circumstances of this case did not warrant devoting so much time to briefing.
The primary areas of dispute involved pain onset, symptom location, and the Vaccine
Act’s severity requirement.6 See Respondent’s Rule 4(c) Report, filed Oct. 3, 2022, at 9-
11, ECF No 29.
Of course, having prevailed in this case, a fees award is generally appropriate.
ECF No. 44. But the Act permits only an award of a reasonable amount of attorney’s fees.
Accordingly, I will reduce the sum to be awarded for entitlement briefing (a total of 32.5
hours, or $11,700.00) by twenty percent.7 Such an across-the-board reduction (which I
am empowered to adopt)8 fairly captures the overbilling evidenced by this work, without
requiring me to act as a “green eye-shaded accountant” in identifying with specificity each
objectionable task relevant to this one sub-area of work performed on the case. This
results in a reduction of $2,340.00.9
ATTORNEY COSTS
Petitioner has provided supporting documentation for all claimed costs, except for
$1.26 in postage. ECF No. 47-2. I will nevertheless allow reimbursement of these
unsubstantiated costs. And Respondent offered no specific objection to the rates or
amounts sought. Thus, I find the amount of costs sought to be reasonable.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). I award a total of $42,589.14 (representing
6 Section 11(c)(1)(D) (six-month severity requirement); 42 C.F.R. C.F.R. § 100.3(c)(10)(ii) & (iii) (2017).
7Because the amount of excessive hours was not as egregious as in previous cases, I will reduce the hours
billed by a lower amount than I otherwise would apply. See, e.g., Callejas v. Sec’y of Health & Hum. Servs.,
No. 20-1767V, 2023 WL 9288086 (Fed. Cl. Spec. Mstr. Oct. 24, 2023).
8 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is
sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017);
Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health &
Hum. Servs., 86 Fed. Cl. 201, 214 (2009).
9 This amount is calculated as follows: 32.5 hrs. x $360 x .20 = $2,340.00.
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$39,683.60 for fees and $2,905.54 in costs) as a lump sum in the form of a check
jointly payable to Petitioner and Petitioner’s counsel, Jimmy A. Zgheib. In the
absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),
the Clerk of Court shall enter judgment in accordance with this Decision.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
5