The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1008V
Filed: November 22, 2024
VICTOR JOHNSON, Special Master Horner
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Leigh Finfer, Muller Brazil LLP, Dresher, PA, for Petitioner.
Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On August 13, 2020, Victor Johnson, “petitioner” 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 filed an amended petition filed on November 23,
2021. Petitioner alleged that he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of the influenza (“flu”) vaccine he received on
September 20, 2017. (ECF Nos. 1, 25.) On April 8, 2024, the parties filed a proffer,
which I adopted as my decision awarding compensation on that same day. (ECF Nos.
52-53.)
On June 11, 2024, petitioner filed a final motion for attorneys’ fees and costs.
(ECF No. 58.) (“Fees App.”). Petitioner requests attorneys’ fees in the amount of
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).
$32,103.60 and attorneys’ costs in the amount of $11,517.47. Fees App. at 2. Pursuant
to General Order No. 9, petitioner has indicated that he has not personally incurred any
costs in pursuit of this litigation. Id. Thus, the total amount requested is $43,621.07. On
June 11, 2024, respondent filed a response to petitioner’s motion. (ECF No. 59.)
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.
Respondent further states, “[t]o the extent petitioner is requesting higher expert hourly
rates than what has typically been awarded in the past, respondent submits that the
Court should reserve the highest rates for the most qualified experts opining on the
most complex medical issues . . . . ” and requesting that the Court “continue to make
case-by-case determinations about a reasonable hourly rate, based upon the work
performed, and any revised expert hourly rate ceiling should reflect the unique character
of the Vaccine Program.” Id. at 3-4. Respondent “respectfully requests that the Court
exercise its discretion and determine a reasonable award for attorneys’ fees and costs.”
Id. at 4. 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, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-
48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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 894-95. The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably
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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 Rates
Petitioner requests the following rates of compensation for his attorneys: for Ms.
Leigh Finfer, $185.00 per hour for work performed in 2019, $200.00 per hour for work
performed in 2020, $225.00 per hour for work performed in 2021, $250.00 per hour for
work performed in 2022, $275.00 per hour for work performed in 2023, and $300.00 per
hour for work performed in 2024; and for Mr. Paul Brazil, $317.00 per hour for work
performed in 2019, $325.00 per hour for work performed in 2020, and $350.00 per hour
for work performed in 2020. These rates are consistent with what counsel have
previously been awarded for their Vaccine Program work and the undersigned finds
them to be reasonable herein.
b. Hours Expended
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. While attorneys may be compensated for non-attorney-level work, the rate must
be comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y
of Health & Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr.
Apr. 28, 2015). Clerical and secretarial tasks should not be billed at all, regardless of
who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.
Upon review, the overall number of hours billed appears to be reasonable. I have
reviewed the billing entries and find that they adequately describe the work done on the
case and the amount of time spent on that work. I do not find any of the entries to be
objectionable, nor has respondent identified any as such. Petitioner is therefore
awarded final attorneys’ fees of $32,103.60.
3
c. Attorneys’ 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 $11,517.47 in attorneys’ costs comprised of
acquisition of medical records and postage. Fees App. Ex. B at 1. This amount also
includes expert services performed by Naveed Mayer Natanzi, DO, board certified in
pain management, and physical medicine and rehabilitation, at $520.00 per hour for 21
hours totaling $10,920.00. Id. at 8. Dr. Natanzi’s rate is consistent with what he has
previously been awarded for his expert services, and I find it to be reasonable herein.
See, e.g., Peka v. Sec'y of Health & Human Servs., No. 20-1099V, 2023 WL 9288151
(Fed. Cl. Spec. Mstr. Dec. 20, 2023). Accordingly, I find that all costs have been
supported with the necessary documentation and are reasonable. Petitioner is therefore
awarded the full amount of costs sought.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have
reviewed the billing records and costs in this case and finds that petitioner’s request for
fees and costs is reasonable. I find it reasonable to compensate petitioner and his
counsel as follows: a lump sum in the amount of $43,621.07, representing
reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check
payable to petitioner and petitioner’s counsel, Leigh Finfer.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
Clerk of the Court shall enter judgment in accordance herewith.3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
4