# Havis v. Secretary of Health and Human Services

> United States Court of Federal Claims · September 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11132059

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** September 3, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Brian H. Corcoran
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0583V

HOLLY HAVIS,
Chief Special Master Corcoran
Petitioner,
v. Filed: July 31, 2025

SECRETARY OF HEALTH AND
HUMAN SERVICES,

Respondent.

Elizabeth Martin Muldowney, Sands Anderson PC, Richmond, VA, for Petitioner.

Benjamin Patrick Warder, U.S. Department of Justice, Washington, DC, for
Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On February 12, 2021, Holly Havis 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 alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, following her receipt of an influenza
vaccine on October 4, 2019. Petition at 1. On November 1, 2024, I issued a decision
awarding compensation to Petitioner, following briefing by the parties. ECF No. 71.

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 $64,420.70 (representing $62,091.10 for attorney’s fees, $2,324.20 for attorney’s
costs, and $5.40 for Petitioner’s out-of-pocket expenses). Petitioner’s Motion for Fees and
Costs filed Jan. 14, 2025, ECF No. 76. In accordance with General Order No. 9, Petitioner
filed a signed statement indicating that she incurred $5.40 in out-of-pocket expenses.
ECF No. 76-1.

Respondent reacted to the motion on January 28, 2025, representing 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. 77. The same day, Petitioner
filed a reply reiterating her fees and costs request. ECF No. 78.

Having considered the motion along with the invoices and other proof filed in
connection, I find reductions in the amount of fees 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.
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.
2
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 by all attorneys and supporting paralegals
through the end of 2024 are reasonable and consistent with our prior determinations, and
will therefore be adopted. However, a few of the tasks performed by Ms. Muldowney 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 by $715.20.4

Regarding the number of hours billed, I deem the total amount of time devoted to
briefing damages to be excessive. See Status Report, filed Apr. 27, 2023, ECF No. 53
(reporting an impasse in the parties’ damages discussions); Petitioner’s Memorandum in
Support of Damages, filed Aug. 16, 2023, ECF No. 61; Petitioner’s Reply to Respondent’s
Response to Petitioner’s Memorandum in Support of Damages, Nov. 21, 2023, ECF No.
65. Petitioner’s counsel expended approximately 36.4 hours drafting the damages brief
and 9.8 hours drafting a reply, totaling 46.25 hours. ECF No. 76-4 at 11-9.

My above calculation does not include time spent preparing the initial demand
which would have informed this later work, and I am therefore awarding fees associated
with that task in full. ECF No. 76-4 at 8. 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., id. at 13 (entry dated 7/13/23).

3 These entries, drafting basic documents such as an exhibit list, notice of filings, statement of completion,

PAR Questionnaire, joint notice not to seek review, and election to accept judgment are dated as follows:
2/5/21, 9/9/21, 1/7/22, 10/7/22, and 2/21/22. ECF No. 76-4 at 6-8, 10.

4 This amount consists of ($408 - $172) x 2.1 hrs. + ($421 - $177) x 0.9 hrs. = $715.20.

5 This total is calculated as follows: 46.2 hours billed on 5/2/23 (two entries), 5/3/23 (two entries), 6/6/23,

6/21/23, 7/14/23, 7/17/23, 8/14/23, 8/15/23 (two entries), and 11/21/23 (three entries), by Elizabeth
Muldowney at a rate of $450. ECF No. 76-4 at 11-15.

3
It is unreasonable for counsel to spend so much time briefing the issue of damages
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), 6 in which
attorneys have accomplished this task in about half the time.7

6 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).

7 See, e.g., Lang v. Sec’y of Health & Hum. Servs., No. 21-0972V (June 26, 2025) (12.3 and 7.6 hours

billed for drafting a damages brief and responsive damages brief, respectively); McClelland v. Sec’y of
Health & Hum. Servs., No. 24-0605V (June 24, 2025) (9.7 and 11.2 hours billed for drafting a damages
brief and responsive damages brief, respectively); Blanco v. Sec’y of Health & Hum. Servs., No. 22-0559V
(June 16, 2025) (4.2 and 8.0 hours billed for drafting a damages brief and responsive damages brief,
respectively); Moreno v. Sec’y of Health & Hum. Servs., No. 21-0433V (June 13, 2025) (7.3 and 4.0 hours
billed for drafting a damages brief and responsive damages brief, respectively); Boyd v. Sec’y of Health &
Hum. Servs., No. 21-0850V (June 13, 2025) (13.3 and 10.9 hours billed for drafting a damages brief and
responsive damages brief, respectively); Perez v. Sec’y of Health & Hum. Servs., No. 21-0746V (June 12,
2025) (13.4 and 5.1 hours billed for drafting a damages brief and responsive damages brief, respectively);
Cohen v. Sec’y of Health & Hum. Servs., No. 23-1060V (June 11, 2025) (8.5 and 4.6 hours billed for drafting
a damages brief and responsive damages brief, respectively); Shaw v. Sec’y of Health & Hum. Servs., No.
22-1348V (January 30, 2025) (9.7 and 5.9 hours billed for drafting a damages brief and responsive
damages brief, respectively); Phillips v. Sec’y of Health & Hum. Servs., No. 21-0076V (January 10, 2025)
(9.0 and 10.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Wirges
v. Sec’y of Health & Hum. Servs., No. 19-1670V (Dec. 27, 2024) (16.8 and 7.5 hours billed for drafting a
damages brief and responsive damages brief, respectively); Tracy v. Sec’y of Health & Hum. Servs., No.
20-1312V (Dec. 27, 2024) (12.5 and 5.1 hours billed for drafting a damages brief and responsive damages
brief, respectively); Tappendorf v. Sec’y of Health & Hum. Servs., No. 20-1592V (Dec. 27, 2024) (14.1and
7.9 hours billed for drafting a damages brief and responsive damages brief, respectively); Stolze v. Sec’y
of Health & Hum. Servs., No. 21-0964V (Nov. 22, 2024) (11.8 and 7.2 hours billed for drafting a damages
brief and responsive damages brief, respectively); Davidson v. Sec’y of Health & Hum. Servs., No. 20-
1617V (Nov. 22, 2024) (14.9 and 3.8 hours billed for drafting a damages brief and responsive damages
brief, respectively); M.F. v. Sec’y of Health & Hum. Servs., No. 21-0970V (Nov. Apr. 9, 2024) (13 and 7.8
hours billed for drafting a damages brief and responsive damages brief, respectively); Axelrod v. Sec’y of
Health & Hum. Servs., No. 21-0980V (Mar. 29, 2024) (11.9 and 12.5 hours billed for drafting a damages
brief and responsive damages brief, respectively); Benz v. Sec’y of Health & Hum. Servs., No. 21-1197V
(Mar. 26, 2024) (19.5 and 6.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Hansler-Point v. Sec’y of Health & Hum. Servs., No. 21-0045V (Mar. 26, 2024) (9.6 and 4.9
hours billed for drafting a damages brief and responsive damages brief, respectively); Dulaney v. Sec’y of
Health & Hum. Servs., No. 20-1488V (Mar. 26, 2024) (6.6 and 0.5 hours billed for drafting a damages brief
and responsive damages brief, respectively); Glanville v. Sec’y of Health & Hum. Servs., No. 19-1973V
(Mar. 26, 2024) (8.7 hours billed for drafting a damages brief); Stokes v. Sec’y of Health & Hum. Servs.,
No. 19-0752V (Feb. 29, 2024) (15.3 and 8.1 hours billed for drafting a damages brief and responsive
damages brief, respectively); Richardson v. Sec’y of Health & Hum. Servs., No. 20-0674V (Feb. 9, 2024)
(9.2 and 6.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Edwards
v. Sec’y of Health & Hum. Servs., No. 21-0056V (Feb. 5, 2024) (11.3 and 7.2 hours billed for drafting a
damages brief and responsive damages brief, respectively); Villa v. Sec’y of Health & Hum. Servs., No. 20-
0569V (Feb. 5, 2024) (6.0 and 5.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Jackson v. Sec’y of Health & Hum. Servs., No. 20-0051V (Feb. 5, 2024) (15.4 and 7.7 hours
billed for drafting a damages brief and responsive damages brief, respectively); 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,
4
Of course, having prevailed in this case, a fees award is generally appropriate.
Havis v. Sec’y of Health & Hum. Servs., No. 21-05839V, 2024 WL 5039036 (Fed. Cl.
Spec. Mstr. Nov. 1, 2024) (also found at ECF No. 71). But the Act permits only an award
of a reasonable amount of attorney’s fees. And I ultimately awarded past pain and
suffering compensation ($75,000.00) that was closer to the amount proposed by
Respondent ($50,000.00), as opposed to $135,000.00 proposed by Petitioner – further
underscoring the extent to which Petitioner’s efforts in this behalf had a futile quality. Id.
at *2, 6. Accordingly, I will reduce the sum to be awarded for entitlement damages briefing
(a total of 46.2 hours, or $20,790.00), by thirty percent. 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 $6,237.00.9

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). 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 August 4, 2024).

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: 46.2 hrs. x $450 x .30 = $6,237.00.

5
Additionally, Petitioner’s counsel billed 2.8 hours investigating whether a request
for interim attorney’s fees and costs was appropriate in this case. ECF No. 76-4 at 16
(entries dated 7/26/24 and 9/6/24). As the initial order, filed in this case on April 22, 2021,
stated, “requests for interim fees and costs are generally not appropriate in SPU cases
and are not entertained absent extraordinary circumstances.” Special Processing Unit
Initial Order at 2, ECF No. 16. And this time was expended less than 10 months after
briefing was completed, and within one month of the Damages Decision’s issuance.
Because this case does not involve events which would constitute these extraordinary
circumstances, it was not reasonable for counsel to have expended this time. This
results in a further reduction of $997.50.10

ATTORNEY COSTS

Petitioner has provided supporting documentation for all claimed costs. ECF No.
76-1 thru 76-3. 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 $56,471.00 (representing $54,141.40 for
attorney’s fees, $2,324.20 for attorney’s costs, and $5.40 for Petitioner’s out-of-
pocket expenses) 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.11

IT IS SO ORDERED.

s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master

10 This amount is calculated as follows: 2.1 hrs. x $475 = $997.50.

11 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11132059. Public record. Not legal advice.