The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0154V
SARAH EICHORN,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 29, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Amber Diane Wilson, Wilson Science Law, Washington, DC, for Petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On February 14, 2020, Sarah Eichorn filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that suffered a shoulder injury related to vaccine
administration (known as SIRVA) resulting from an influenza vaccine she received on
October 25, 2018. Petition at 1-2. On November 7, 2023, I issued a decision awarding
compensation to Petitioner, following briefing by the parties and participation in a Motions
Day argument. ECF No. 44.
1 Because 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 $70,466.04 (representing $69,891.40 in attorney’s fees and $574.64 in attorney’s
costs). Petitioner’s Application for Attorneys’ Fees and Costs (“Motion”) filed Nov. 21,
2023, ECF No. 47. The requested award is comprised of $54,335.30 (representing
$54,265.30 in fees and $70.00 in costs) incurred by Petitioner’s counsel of record, Wilson
Science Law; and $16,130.74 (representing $15,626.10 in fees and $504.64 in costs)
incurred by Petitioner’s former counsel, Maglio Christopher and Toale Law). Id. at 1-2. In
accordance with General Order No. 9, Petitioner filed a signed statement representing
that Petitioner incurred no in out-of-pocket expenses. ECF No. 47-5.
Respondent reacted to the motion on December 5, 2023, representing that he is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case but deferring resolution of the amount to be awarded to my discretion. Motion
at 2-3, ECF No. 48. Petitioner did not file a reply thereafter.
Having considered the motion along with the invoices and other proof filed in
connection, I find reductions in the amount of fees and costs to be awarded appropriate,
for the reasons set forth 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
& 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.
2
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
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 rates requested for work performed through the end of 2023 are reasonable
and consistent with our prior determinations, and will therefore be adopted. ECF No. 47-
1 at 1-12; ECF No. 47-2 at 1-12. However, one rate adjustment still is required.
Several tasks performed by Ms. Wilson are more properly billed using a paralegal
rate.3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed
at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL
3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is
compensated turns not on who ultimately performed the task but instead turns on the
nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV,
2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). This reduces the amount
of fees to be awarded Amber Wilson at Wilson Science Law by $326.60.4
Regarding the number of hours billed, I deem the total amount of time devoted to
briefing entitlement and damages to be excessive. See Petitioner’s Motion for Findings
of Fact, filed Oct. 26, 2020, ECF No. 22; Petitioner’s Reply, filed Feb. 19, 2021, ECF No.
28; Petitioner’s Motion for a Decision on the Evidence, filed Mar. 28, 2022, ECF No. 33;
Status Report, filed Apr. 27, 2022, ECF No. 36 (expressing Petitioner’s wish to obtain a
damages decision following briefing by the parties); Petitioner’s Reply, filed Aug. 26,
2022, ECF No. 40. Petitioner’s counsel expended approximately 24.9 hours drafting a
motion for a factual ruling, 11.5 hours drafting a reply brief on the factual issue, 32.6 hours
drafting a motion related to entitlement and damages, and 17.4 hours drafting a reply brief
regarding damages, totaling 86.4.5 hours. ECF No. 47-1 at 7-10. Even considering that
3 These entries describe requests for medical records and the preparation and filing of exhibits, exhibit lists,
and other basic documents, and are dated as follows: 5/18/20 (two entries), 5/19/20, 5/24/20, 6/3/20,
6/15/20, 10/26/20, 11/7/23, and 11/8/23. ECF No. 47-1 at 2-4, 12.
4 This amount consists of ($345 - $163) x 1.5 hrs. + ($454 - $186) x 0.2 hrs. = $326.60.
5 These totals are calculated as follows: 26.9 hours billed on 9/1/20 (two entries), 10/16/20 (four entries),
10/20/20 (three entries), 10/21/20 (two entries), 10/22/20 (two entries), 10/24/20 (two entries), 10/26/20,
3
this amount of time was spent producing four different documents, the time for each task
was excessive. And this conclusion is further strengthened when considering that each
prior task should have informed the subsequent drafting task, and thus, lessened the
required time further.
My above calculation does not include time spent preparing the initial demand
which would have informed this later work – 3.5 hours – and I am therefore awarding fees
associated with that task in full.6 Nor am I counting time spent communicating with
Petitioner and preparing additional supporting documentation such as affidavits or signed
declarations, which is also being awarded in full. See, e.g., ECF No. 47-1 at 8 (three
entries dated 2/14/22, 2/28/21, and 3/11/22).
It is unreasonable for counsel to spend so much time briefing the issues of
entitlement and damages in this case. I have identified numerous cases (which may
reasonably be compared to time spent in this matter),7 in which attorneys have
accomplished this task in about half the time.8 See, e.g., Miller v. Sec’y of Health & Hum.
Servs., No. 20-0959V (Feb. 5, 2024) (5.6 and 9.6 hours billed for drafting an entitlement
brief and responsive brief and 6.7 and 6.2 hours billed drafting a separate, later damages
brief and responsive brief); Johnson v. Sec’y of Health & Hum. Servs., No. 19-1543V
(Aug. 17, 2023) (17.8 and 9.7 hours billed for drafting an entitlement and damages brief
and responsive entitlement and damages brief, respectively); Piccolotti v. Sec’y of Health
& Hum. Servs., No. 20-0135V (June 8, 2023) (11.6 and 3.8 hours billed for drafting an
entitlement and damages brief and responsive entitlement and damages brief,
respectively); Merson v. Sec’y of Health & Hum. Servs., No. 18-0589V (May 18, 2023)
(9.8 hours billed for drafting an entitlement and damages brief – although some time was
doubtlessly saved by my March 9, 2020 factual ruling finding an appropriate pain onset);
C.H. v. Sec’y of Health & Hum. Servs., No. 20-0249V (May16, 2023) (12.9 and 6.1 hours
2/15/21, and 2/19/21 (the last two entries mistakenly billed at the 2020 hourly rate), by Amber Wilson, at a
rate of $345; 9.5 hours billed on 2/15/21, 2/19/21 (two entries), 2/20/21 (two entries), 2/22/21, by Amber
Wilson, at a rate of $378; 43.9 hours billed on 2/1/22 (two entries), 2/9/22, 2/10/22 (four entries), 2/11/23
(two entries), 2/13/22 (two entries), 3/17/22 (two entries), 3/21/22, 3/22/22, 3/24/22, 3/28/22 (two entries),
8/11/22 (three entries), 8/15/22, 8/17/22, and 8/25/22, by Amber Wilson at a rate of $427; and 6.1 hours
billed on 8/15/23, 8/17/23, and 8/21/23, by Amber Wilson at a rate of $454.
6 This time was billed by Amber Wilson, using an hourly rates of $378 and $427. ECF No. 47-1 at 6-7.
7 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).
8 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).
4
billed for drafting an entitlement and damages brief and responsive entitlement and
damages brief, respectively).
The circumstances of this case did not warrant devoting so much time to briefing.
Petitioner filed her initial brief less than six months after the case was activated from PAR
to the SPU and prior to the completion of the HHS review. See ECF Nos. 9, 22 (showing
activation on March 6, 202, and the motion filed on October 26, 2020). And Petitioner filed
her motion related to damages before the parties attempted to reach an informal
resolution. See ECF Nos. 33-34 (showing Petitioner’s motion was filed the same day as
my entitlement determination).
Furthermore, I ultimately was required to determine only the appropriate amount
of damages. Eichorn v. Sec’y of Health & Hum. Servs., No. 20-0154V, 2023 WL 8525127
(Fed. Cl. Spec. Mstr. Nov. 7, 2023). Although Respondent contended Petitioner should
not receive any award for future pain and suffering, the parties’ views of the appropriate
amount of past pain and suffering differed by only $15,000.00 - Petitioner sought
$85,000.00, and Respondent countered with $70,000.00. Id. at *4-5. I ultimately awarded
$78,000.00 for past pain and suffering and $7,259.62 for future pain and suffering. Id. at
*8.
Of course, having prevailed in this case, a fees award is generally appropriate.
See ECF No. 42. 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 briefing (a total of 86.4 hours,
or $34,386.20) by thirty percent. Such an across-the-board reduction (which I am
empowered to adopt)9 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 further reduction of the attorney’s fees to be awarded Amber Wilson at
Wilson Science Law of $10,315.86.10
9 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).
10 This amount is calculated as follows: (26.9 hrs. x $345 x .30) + (9.5 hrs. x $378 x .30) + (43.9 hrs. x $427
x .30) + (6.1 hrs. x $454 x .30) = $10,315.86.
5
ATTORNEY COSTS
Petitioner requests $574.64 for attorney’s costs, and has provided supporting
documentation for all claimed attorney costs. ECF No. 47-2 at 14-30; ECF No. 47-1 at
12-20. Additionally, Respondent offered no specific objection to the rates or amounts
sought. Thus, I will award the amount of attorney’s costs sought in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for
attorney’s fees and costs. Petitioner is awarded the total amount of $59,823.5811 as
follows:
• A lump sum of $43,692.84, representing $43,622.84 for attorney’s fees
and $70.00 in attorney’s costs, in the form of a check payable jointly
to Petitioner and Petitioner’s current counsel, Amber Wilson, and
forwarded to Wilson Science Law, 1629 K Street, N.W., Ste 300,
Washington, DC 20006; and
• A lump sum of $16,130.74, representing $15,626.10 for attorney’s fees
and $504.64 for attorney’s costs, in the form of a check payable jointly
to Petitioner and Petitioner’s former counsel, Maglio, Christopher,
and Toale, PA, and forwarded to Maglio, Christopher & Toale, PA,
1605 Main Street, Suite 710, Sarasota, Florida 34236.
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.12
11 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” as well as 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).
12 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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