The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0630V
CARMEN KIENOW,
Chief Special Master Corcoran
Petitioner,
v. Filed: January 30, 2025
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Catherine Wallace Costigan, Maglio Christopher & Toale, Washington, DC, for Petitioner.
Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 12, 2021, Carmen Kienow 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccination administered to her on
September 26, 2019. Petition at 1, ¶¶ 1, 20. On September 20, 2024, I issued a decision
awarding damages to Petitioner, based on the Respondent’s proffer. ECF No. 65.
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 $93,668.54 (representing $89,811.50 for attorney’s fees and $3,857.04 for attorney’s
costs). Petitioner Application for Attorneys’ Fees, filed Nov. 4, 2024, ECF No. 70. In
accordance with General Order No. 9, counsel for Petitioner represents that Petitioner
incurred no out-of-pocket expenses. ECF No. 70-3.
Respondent reacted to the motion on November 18, 2024, 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. 71. Petitioner did not file a reply.
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
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
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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 2024 are reasonable
and consistent with our prior determinations, and will therefore be adopted. However, a
portion of one task performed by Anne Toale (a named partner at Petitioner’s counsel’s
law firm) is more properly billed using a paralegal rate. ECF No. 70-1 at 29 (entry dated
8/30/22). “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). Given that Ms. Toale likely
saved time by performing these tasks herself, I will allow reimbursement at an attorney
rate for the full time involved in this entry, only 1.0 hour in total.
Regarding the time billed, however, I deem the total amount of time devoted to
briefing the factual issues of situs and onset to be excessive. See Petitioner’s Motion for
Findings of Fact Regarding Timing of Onset and Site of Vaccination, filed July 10, 2023,
ECF No. 48; Petitioner’s Reply in Support of Findings of Fact Regarding Timing of Onset
and Site of Vaccination and Renewed Motion for a Fact Hearing (If Necessary), filed Sept.
18, 2023, ECF No. 51. Petitioner’s counsel expended approximately 23.6 hours drafting
the motion and 8.0 hours drafting the reply, totaling 31.63 hours.
It is unreasonable for counsel to spend so much time briefing the factual issues of
situs and onset 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 I also note that the
3 This total is calculated as follows: 31.4 hours billed on 6/10/23, 6/12/23, 6/6/26/23 (three entires), 6/27/23
(two entries), 6/28/23 (two entries), 7/7/23 (two entries), 7/8/23 (two entries), 7/10/23, 8/11/23, 9/12/23,
9/18/23, by Anne Toale at a rate of $535; and 0.2 hours billed on 9/18/23, by paralegal Melissa Sealy at a
rate of $180. ECF No. 70-1 at 38-41.
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 See, e.g., Patel v. Sec’y of Health & Hum. Servs., No. 20-0036V (Dec. 30, 2024) (12.0 and 5.9 hours
billed for drafting a motion for a fact ruling and reply, respectively); Beyer v. Sec’y of Health & Hum. Servs.,
No. 21-0101V (Dec. 30, 2024) (14.3 hours billed for drafting a motion for a fact ruling); Collins v. Sec’y of
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amount of attorney’s fee and costs sought in this case is approximately $30,000.00 more
than the compensation awarded to Petitioner. ECF No. 65.
Of course, having prevailed in this case, a fees award is generally appropriate. 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 31.6 hours, or
$16,835.00) by twenty percent.6 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 $3,367.00.8
Health & Hum. Servs., No. 20-1715V (Dec. 27, 2024) (15.2 billed for drafting an entitlement brief and 0.7
hours to review Respondent’s response); Lucey v. Sec’y of Health & Hum. Servs., No. 21-0418V (Sept. 30,
2024) (14.1 and 6.8 hours billed for drafting an entitlement brief and responsive entitlement brief,
respectively); Washburn v. Sec’y of Health & Hum. Servs., No. 21-0481V (Sept. 26, 2024) (12.8 hours billed
for drafting an entitlement brief); Fletcher v. Sec’y of Health & Hum. Servs., No. 20-0127V (Apr. 25, 2024)
(12.7 and 9.0 hours billed for drafting an entitlement brief and responsive entitlement brief, respectively);
Lamine v. Sec’y of Health & Hum. Servs., No. 20-1560V (Mar. 27, 2024) (8.9 and 7.2 hours billed for drafting
an entitlement brief and responsive entitlement brief, respectively); Davenport v. Sec’y of Health & Hum.
Servs., No. 20-0206V (Mar. 25, 2024) (16.5 and 2.6 hours billed for drafting an entitlement brief and a
responsive entitlement brief, respectively); 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 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). These decisions can (or will) 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 Dec. 7, 2024).
6 Because 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).
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: (31.4 hrs. x $535 x .20) + (0.2 hrs. x $180 x .20) = $3,367.00.
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ATTORNEY COSTS
Petitioner has provided supporting documentation for all claimed costs, except for
a small amount of postage which I will nevertheless reimburse. ECF No. 70-2. 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). Accordingly, I hereby GRANT Petitioner’s Motion for
attorney’s fees and costs. I award a total of $90,301.54 (representing $86,444.50 for
attorney’s fees and $3,857.04 in costs) to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement. 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.
5