The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-439V
DANA J. LENKOWSKY,
Chief Special Master Corcoran
Petitioner, Filed: October 22, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Robert Joel Krakow, Law Office of Robert J. Krakow, P.C. New York, NY, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 11, 2021, Dana J. Lenkowsky 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”) following an influenza vaccine she received on September 27,
2020. Petition, ECF No. 1. On March 24, 2025, I issued a decision awarding
compensation to Petitioner based on the Respondent’s proffer. ECF No. 86.
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 $81,043.03 (representing $80,140.40 in fees plus $902.63 in costs). Application for
Attorney’s Fees and Costs (“Motion”) filed July 19, 2025, ECF No. 91. Furthermore,
Petitioner filed a signed statement representing that no personal out-of-pocket expenses
were incurred. ECF No. 91-5 at 1.
Respondent reacted to the Motion on August 4, 2025, stating 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. Response at 2, 4.
ECF No. 92. Petitioner noted thereafter that she did not intend to file a substantive reply,
deferring instead to the facts, law, and argument submitted in the Motion. ECF No. 93.
I have reviewed the billing records submitted with Petitioner’s request and find a
reduction 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 for
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 & Human 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 & Human 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 & Human 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 & Human 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 & Human 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
I have reviewed the billing records submitted with Petitioner’s request. The rates
requested for work performed by attorney Robert Krakow through 2024 are reasonable
and consistent with our prior determinations, and will therefore be awarded herein.
However, the rates requested for work performed in 2025 require adjustment, and some
work devoted to the matter was improperly billed.
Mr. Krakow was previously awarded a lesser rate for 2025 than requested herein
($584.00 for work performed in 2025, versus the $627.00 sought in this matter). See I.J.
v. Sec’y of Health & Hum. Servs., No. 16-864, 2021 WL 3627107 (Fed. Cl. Spec. Mstr.
July 20, 2021); Kotch v. Sec’y of Health & Hum. Servs., No. 19-675, 2025 WL 1012834
(Fed. Cl. Spec. Mstr. February 27, 2025). I find no reason to deviate from those
determinations, and it otherwise is not the practice of OSM to adjust prior rate
determinations upward in later cases. See Jefferson v. Sec’y of Health & Hum. Servs.,
No. 19-1882, 2023 WL 387051 (Fed. Cl. Spec. Mstr. Jan. 9, 2023). Accordingly, I reduce
attorney Krakow’s rate to be consistent with I.J. and Kotch. Application of the foregoing
reduces the fees to be awarded herein by $1,376.00. 3
In addition, the billing records reveal that numerous tasks performed by attorney
Robert Krakow in this matter were more properly billed using a paralegal rate.4 “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,
3
This amount consists of reducing Mr. Krakow’s rate for 2025 and is calculated as follows: ($627.00 -
$584.00 = $43.00 x 32.00 hours billed) = $1,376.00.
4
Entries considered paralegal in nature include drafting requests for medical records, following up on
medical records requests and drafting basic documents such as an exhibit list, PAR questionnaire, notice
of filing, notice of intent, statement of completion, cover sheet, joint notice not to seek review. Entries that
include paralegal tasks billed at an attorney rate include, but are not limited to, the following: 9/29/2021,
3/25/2022, 9/16/2022, 10/14/2022, 10/15/2022, 11/1/2022, 9/7/2023, 10/26/2023, 3/24/2025, 3/28/2025,
5/12/2025, 6/26/2025. ECF No. 91-2 at 1-47.
3
2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Counsel is admonished that
although these billing entries reflect reasonably performed tasks generally, they must be
charged at a reduced rate comparable to that of a paralegal.
In evaluating a motion for attorney’s fees and costs, special masters “need not,
and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826,
838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). Instead, in appropriate circumstances they
may make reasonable, across-the-board percentage adjustments. Here, such an overall
percentage cut is reasonable, and preferrable to a time-consuming line-by-line review of
the bill. I therefore reduce the total fees to be awarded herein by five percent as a fair
adjustment to account for the paralegal duties issue mentioned. This reduction is also
appropriate for a matter resolved for a sum that was nearly half of what counsel billed to
the case. Application of the foregoing further reduces the total amount of fees to be
awarded by $4,007.02.5
ATTORNEY COSTS
Petitioner requests $902.63 in overall costs. ECF No. 91-2 at 1-17. Such costs
reflect the expenses of obtaining medical records, photocopying, and the Court’s filing
fee. I have reviewed the requested costs, but find that Petitioner’s counsel has not
substantiated some of the requested costs with the required documentation, such as an
invoice or proof of payment. Before reimbursement of costs will be made, sufficient
supporting documentation, such as invoices, receipts, and billing statements, must be
provided. See Guidelines for Practice Under the National Vaccine Injury Compensation
Program at 72-74 (emphasis added).6
When Petitioners fail to provide appropriate documentation to substantiate a
requested cost, special masters have refrained from awarding the relevant sum. See,
e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs., No. 99-480V, 2005 WL 6122520,
at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). And Petitioner had adequate time to obtain
corroboration for these costs. Accordingly, I disallow reimbursement for all
unsubstantiated costs herein. This results in a reduction in the total amount of
litigation costs to be awarded by $177.82.
5
This amount is calculated as follows: $80,140.40 x 0.05 = $4,007.02.
6
The guidelines for Practice Under the National Vaccine Injury Compensation Program can be found at:
https://www.uscfc.uscourts.gov/sites/default/files/vaccine guidelines 20240318.pdf
4
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT, in part, Petitioner’s
Motion for attorney’s fees and costs. Petitioner is awarded attorney’s fees and costs
in the total amount of $75,482.19 (representing $74,757.38 in fees plus $724.81 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. 7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7
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