The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0091V
MATTHEW HUBER,
Chief Special Master Corcoran
Petitioner,
v. Filed: February 9, 2024
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Rachelle Bishop, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 5, 2021, Matthew Huber 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 he suffered a left shoulder injury related to vaccine
administration (“SIRVA”) following his receipt of an influenza (“flu”) vaccine on September
18, 2020. On October 26, 2023, I issued a decision awarding compensation to Petitioner,
following briefing by the parties. ECF No. 39.
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 $37,505.12 (representing $36,796.40 in fees and $708.72 in costs). Petitioner’s First
Application for Attorneys’ Fees and Costs, filed Oct. 31, 2023, ECF No. 43. In accordance
with General Order No. 9, Petitioner filed a signed statement indicating that he incurred
no out-of-pocket expenses. Id. at 43-4.
Respondent reacted to the motion on November 1, 2023, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, but deferring resolution of the amount to be awarded to my discretion.
Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 44.
On November 1, 2023, Petitioner filed a reply, criticizing Respondent’s lack of a
specific response to his motion and stating that he therefore “does not intend to file a
substantive reply to Respondent’s response.” ECF No. 45.
Having considered the motion along with the invoices and other proof filed in
connection, I find a reduction in the amount of fees to be awarded appropriate, for the
reason 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. 43
at 1. Regarding the number of hours billed, however, I deem the total amount of time
devoted to briefing damages to be excessive. See Petitioner’s Motion for Ruling on the
Record on Damages and Brief in Support, filed Feb. 17, 2023, ECF No. 29; Petitioner’s
Reply Brief, filed May 12, 2023, ECF No. 37. Petitioner’s counsel expended approximately
30.5 hours drafting the damages brief and 8.9 hours drafting the reply brief, totaling 39.43
hours. ECF No. 43-2 at 3-5.
My above calculation does not include time spent preparing the initial demand
which would have informed this later work – 4.3 hours – and I am therefore awarding fees
associated with that task in full.4 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. 43-2 at 4 (2/7/23
entry).
It is unreasonable for counsel to spend so much time briefing the issue of damages
in this case, once the sum in question is calculated, and where the issues presented are
not complex. I have identified numerous cases (which may reasonably be compared to
time spent in this matter),5 in which attorneys have accomplished this task in about half
3
This total is calculated as follows: 15.5 hours billed on 10/20/22, 10/21/22, and 10/23/22 by John Howie
at a rate of $466; and 23.9 hours billed on 2/5/23, 2/6/23, 2/14/23 (two entries), 4/27/23 (two entries), 5/4/23,
and 5/12/23 by John Howie at a rate of $492.
4
This time was billed by John Howie, using an hourly rate of $466, and results in $2,008.30 in attorney’s
fees. ECF No. 43-2 at 3.
5
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).
3
the time.6 See, e.g., Mulloy v. Sec’y of Health & Hum. Servs., No. 19-1396V (Nov. 6,
2023) (19.7 and 9.5 hours billed for drafting a damages brief and responsive damages
brief, respectively); Gao v. Sec’y of Health & Hum. Servs., No. 21-1884V (Oct. 25, 2023)
(16.5 and 9.4 hours billed for drafting a damages brief and responsive damages brief,
respectively); Knasel v. Sec’y of Health & Hum. Servs., No. 20-1366V (Oct. 25, 2023)
(11.5 and 13.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Langdon v. Sec’y of Health & Hum. Servs., No. 20-1311V (Oct. 25, 2023)
(12.5 and 12.8 hours billed for drafting a damages brief and responsive damages brief,
respectively); Mantagas v. Sec’y of Health & Hum. Servs., No. 20-1720V (Oct. 17, 2023)
(6.7 and 4.2 hours billed for drafting a damages brief and responsive damages brief,
respectively); Majerus v. Sec’y of Health & Hum. Servs., No. 20-1346V (Oct. 17, 2023)
(11.0 and 4.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Cosden v. Sec’y of Health & Hum. Servs., No. 20-1783 (Aug. 8, 2023) (6.3
hours billed for drafting a damages brief); Balch v. Sec’y of Health & Hum. Servs., No.
20-0872V (June 30, 2023) (18.7 hours billed for drafting a damages brief); Kestner v.
Sec’y of Health & Hum. Servs., No. 20-0025V (June 22, 2023) (6.00 and 4.10 hours billed
for drafting a damages brief and responsive damages brief, respectively); Juno v. Sec’y
of Health & Hum. Servs., No. 18-0643V (June 14, 2023) (5.8 hours billed for drafting a
damages brief); Deutsch v. Sec’y of Health & Hum. Servs., No. 18-0527V (June 12, 2023)
(7.4 and 4.4 hours billed for drafting a damages brief and responsive damages brief,
respectively); Edminister v. Sec’y of Health & Hum. Servs., No. 19-0184V (May 30, 2023)
(15.3 and 3.5 hours billed for drafting a damages brief and responsive damages brief,
respectively); Aponte v. Sec’y of Health & Hum. Servs., No. 20-1031V (May 18, 2023)
(6.9 hours billed for drafting a damages brief); Gray v. Sec’y of Health & Hum. Servs., No.
20-1708V (May 18, 2023) (5 hours billed for drafting a damages brief); Horky v. Sec’y of
Health & Hum. Servs., No. 20-0239V (May 18, 2023) (5.8 hours billed for drafting a
damages brief); Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V (May 18, 2023)
(9.5 and 2.5 hours billed for drafting a damages brief and responsive damages brief,
respectively); Rice-Hansen v. Sec’y of Health & Hum. Servs., No. 20-1338V (May 17,
2023) (12.9 and 6.1 hours billed for drafting a damages brief and responsive damages
brief, respectively).
The circumstances of this case did not warrant devoting so much time to damages
briefing. The parties agreed upon the amount of past expenses, and the only area of
dispute was the appropriate amount of compensation for Petitioner’s past pain and
suffering. See Huber v. Sec’y of Health & Hum. Servs., No. 21-0091V, 2023 WL 8187306
6
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 July 21, 2023).
4
(Fed. Cl. Spec. Mstr. Oct. 26, 2023). Furthermore, the parties’ views differed by only
$10,000.00 - Petitioner sought $77,500.00, and Respondent countered with $67,500.00,
an. Id. at *5-6. I ultimately awarded an amount for pain and suffering closer to that
proposed by Respondent, $70,000.00 – further underscoring the extent to which
Petitioner’s efforts in this behalf had a futile quality (since I ultimately found the higher
figure was not adequately defended). Id. at *6. Nevertheless, due to the reasonable
amount of overall attorney’s fees and costs sought and my May 11, 2022 instruction to
Petitioner that he may file a motion for a ruling on the record, I will reduce the hours billed
by a lower amount than I otherwise would apply. See, e.g., Peterson v. Sec’y of Health &
Hum. Servs., No. 20-1649V, 2023 WL 6444426 (Fed. Cl. Spec. Mstr. Aug. 31, 2023).
Of course, having prevailed in this case, a fees award is generally appropriate.
See Huber, 2023 WL 8187306, at *6. 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 damages
briefing (a total of 39.4 hours, or $18,981.80) by twenty percent. Such an across-the-
board reduction (which I am empowered to adopt)7 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 $3,796.36.8
ATTORNEY COSTS
Petitioner requests $708.72 in overall costs. ECF No. 43 at 1. He has provided
receipts for all but expenses of $26.65 for copying which I nevertheless will allow. ECF
No. 43-3. And Respondent offered no specific objection to the rates or amounts sought.
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. I award a total of $33,708.76 (representing $33,000.04 in fees
and $708.72 in costs) as a lump sum in the form of a check jointly payable to
Petitioner and Petitioner’s counsel, John R. Howie, Jr.
7
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).
8
This amount is calculated as follows: (15.5 x $466 x .20) + (23.9 x $492 x .20) = $3,796.36.
5
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.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
6