Minner v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1579V

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* Chief Special Master Corcoran

WILLIAM MINNER, *

* Filed: February 17, 2026

Petitioner, *

*

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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Laura J. Levenberg, Muller Brazil, Dresher, PA, for Petitioner.

Ryan D. Pyles, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON RECONSIDERATION GRANTING IN

PART AWARD OF ATTORNEY’S FEES AND COSTS 1

On July 15, 2021, William Minner filed a Petition seeking compensation under the National

Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petition, dated July 15, 2021

(ECF No. 1) (“Pet.”). Petitioner alleged that an influenza vaccine he received on August 31, 2020,

caused him to develop brachial neuritis. Pet. at 1. I issued my decision in this case denying

entitlement on September 25, 2025. Decision, dated Sep. 25, 2025, (ECF No. 54). No further

appeal was taken.

Petitioner subsequently filed his motion for attorney’s fees and costs accrued while

litigating this claim. Motion for Attorneys’ Fees and Costs, dated Dec. 9, 2025, (ECF No. 58)

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Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information

furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or

confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly

unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public

in its present form. Id.

2

The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).

Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

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(“Mot.”). Petitioner requests a total of $93,153.06 (comprised of $46,222.50 in fees and

$46,930.56 in costs) for work performed on the matter. Id. at 2. I issued a decision awarding

Petitioner’s motion in part shortly thereafter. See Decision, dated Sep. 25, 2025 (ECF No. 54).

On January 22, 2026, Petitioner moved for reconsideration of my fees decision. Motion,

dated Jan. 22, 2026 (ECF No. 61). He specifically questioned my reduction of his counsel’s 2022

hourly fee rate, which I had reduced from the requested $350 to $275 an hour. Id. at 3. On February

4, 2026, I granted the motion for reconsideration, vacating my prior fees decision so I could

evaluate further the merits of his rate objection. Order, dated Feb. 4, 2026 (ECF No. 62).

Respondent has not filed an objection to my ruling, making this matter ripe for adjudication.

For the reasons set forth below, I hereby grant Petitioner’s motion in part, awarding fees

and costs in the total amount of $82,773.06.

ANALYSIS

I. Petitioner’s Claim has Reasonable Basis

Although the Vaccine Act only guarantees a fees award to successful petitioners, a special

master may also award fees and costs in an unsuccessful case if: (1) the “petition was brought in

good faith”; and (2) “there was reasonable basis for the claim for which the petition was brought.”

Section 15(e)(1). I have in prior decisions set forth at length the criteria to be applied when

determining if a claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Sterling

v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443, at *4 (Fed. Cl. Spec. Mstr. Jan.

3, 2020). Importantly, establishing reasonable basis does not automatically entitle an unsuccessful

claimant to fees, but is instead a threshold obligation; fees can still thereafter be limited, if

unreasonable, or even denied entirely. The act of an attorney’s withdrawal from a case is often

deemed an appropriate circumstance for paying fees—although because the case is still pending,

a claimant must make the good faith/reasonable basis showing relevant to unsuccessful claims.

A claim’s reasonable basis is demonstrated through some objective evidentiary showing.

Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (citing

Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This objective

inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may bulwark good

faith). Simmons, 875 F.3d at 635. Reasonable basis inquiries are not static—they evaluate not only

what was known at the time the petition was filed, but also take into account what is learned about

the evidentiary support for the claim as the matter progresses. Perreira v. Sec’y of Health & Hum.

Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the finding that a reasonable basis for

petitioners’ claims ceased to exist once they had reviewed their expert's opinion, which consisted

entirely of unsupported speculation).

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The standard for reasonable basis is lesser (and thus inherently easier to satisfy) than the

preponderant standard applied when assessing entitlement, as cases that fail can still have

sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 144 Fed.

Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable basis is a standard

that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of Health &

Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) (affirming special

master). The factual basis and medical support for the claim is among the evidence that should be

considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 378 (Fed. Cl. 2017). Under

the Vaccine Act, special masters have “maximum discretion” in applying the reasonable basis

standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401, 401–02 (Fed. Cl.

2012).

Also, relevant herein are the standards governing interim awards—meaning fees awards

issued while a case is still pending. See generally Auch v. Sec'y of Health & Hum. Servs., No. 12-

673V, 2016 WL 3944701, at *6–9 (Fed. Cl. Spec. Mstr. May 20, 2016); Al-Uffi v. Sec'y of Health

& Hum. Servs., No. 13-956V, 2015 WL 6181669, at *5–9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It

is well-established that a decision on entitlement is not required before fees or costs may be

awarded. Fester v. Sec’y of Health & Hum. Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed.

Cl. Spec. Mstr. Aug. 27, 2013); see also Cloer v. Sec’y of Health & Hum. Servs., 675 F.3d 1358,

1362 (Fed. Cir. 2012); Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir.

2008). Interim award requests are subject to the same reasonable basis inquiry applied to

unsuccessful but completed matters, since in the context of an interim request the claim literally is

not yet been found to be “successful.”

There is no presumption of entitlement to interim awards, but special masters may in their

discretion permit such awards, and often do so. Perreira v. Sec’y of Health & Hum. Servs., 27 Fed.

Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim costs are subject to

the same standards governing fees. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52 Fed.

Cl. 667, 670 (2002); Fester, 2013 WL 5367670, at *16. However, there must be some showing

that a petitioner’s circumstances render an interim award just. Criteria that I have found to be

important in determining whether an interim award should be permitted include: 1) whether the

amount of fees requested exceeds $30,000; 2) where expert costs are requested, if the aggregate

amount is more than $15,000; and/or 3) whether the case has been pending for more than 18

months. See Knorr v. Sec’y of Health & Hum. Servs., No. 15-1169V, 2017 WL 2461375 (Fed. Cl.

Spec. Mstr. Apr. 17, 2017).

Although Petitioner’s claim was ultimately unsuccessful, I find that there was sufficient

objective basis to entitle him to a fees and costs award. There was objective record evidence that

Petitioner was reasonably diagnosed with brachial neuritis after the relevant vaccination, and the

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theory that certain covered vaccines can cause this condition has reliable scientific support. Thus,

and in light of the exceedingly lenient standard that governs reasonable basis determinations, a final

award of fees and costs in this matter is permissible. And because I find no reason otherwise to

deny a fees award, I will allow one herein.

II. Calculation of Fees

Only “reasonable” fees or costs may be awarded in the Program. Determining the

appropriate amount of the fees award is a two-part process. The first part involves application of

the lodestar method—“multiplying the number of hours reasonably expended on the litigation

times a reasonable hourly rate.” Avera, 515 F.3d at 1347–48 (Fed. Cir. 2008) (quoting Blum v.

Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up

or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee

award is considered applicable in most cases where a fee award is authorized by federal statute.

Hensely, 461 U.S. at 429–37.

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the

proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,

for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there

is a substantial difference in rates (the so-called “Davis” exception). Avera, 515 F.3d at 1348

(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges

for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine

Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at

*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Petitioner’s Motion requests the following rates for her various attorneys, based on the

years work was performed:

2020 2021 2022 2023 2024 2025

Laura N/A $275 $350 $375 $400 $425

Levenberg

(Attorney)

Bridget N/A $275 N/A N/A N/A N/A

McCullough

(Attorney)

Stacie Bole $125 $125 $125 N/A N/A N/A

(Attorney)

Stacey Bowman $125 $125 N/A N/A N/A $170

(Paralegal)

Ginny Schaffer $125 $125 $125 N/A N/A N/A

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(Paralegal)

Katy Yoos N/A $165 N/A $165 N/A $180

(Paralegal)

Laura Fox N/A $125 N/A N/A N/A N/A

(Paralegal)

Tereza N/A $160 $160 $177 $177 $180

Pavlacsek

(Paralegal)

Erik Pavlacsek N/A $125 $125 $140 $155 $170

(Paralegal)

Marykate N/A N/A N/A N/A N/A $125

Petrone

(Paralegal)

Mot. at 7–22.

Ms. Levenberg and the staff of her firm practice in Dresher, PA—a jurisdiction that has

been deemed “in forum.” Accordingly, she should be paid forum rates as established in McCulloch.

See Long v. Sec'y of Health & Hum. Servs., No. 20-1781V, 2023 WL 2053928 (Fed. Cl. Spec.

Mstr. Feb. 17, 2023); Askins v. Sec'y of Health & Hum. Servs., No. 21-1907V, 2024 WL 4930691,

at *2 (Fed. Cl. Spec. Mstr. Nov. 5, 2024). The rates requested are also consistent with what has

previously been awarded for the work of these attorneys, in accordance with the Office of Special

Masters’ fee schedule. 3 Brickhouse v. Sec'y of Health & Hum. Servs., No. 22-1377V, 2025 WL

1517974, at *1 (Fed. Cl. Spec. Mstr. Apr. 28, 2025); Milligan v. Sec’y of Health & Hum. Servs.,

No. 21-1382V, 2023 WL 2054232, at (Fed. Cl. Spec. Mstr. Feb. 17, 2023). I thus find no cause to

reduce them in this instance (and in this revised Decision, I accept Petitioner’s request that attorney

Levenberg receive $350 per hour for work performed in 2022). I also deem the time devoted to

the matter to be reasonable. I will therefore award all fees requested without adjustment.

III. Calculation of Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must

also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed.

Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992).

Reasonable costs include the costs of obtaining medical records and expert time incurred while

working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at

*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as

by not providing appropriate documentation to explain the basis for a particular cost, special masters

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OSM Attorneys’ Forum Hourly Rate Fee Schedules. https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-

rate-fee-schedules (last visited Feb. 4, 2026).

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have refrained from paying the cost at issue. 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).

Petitioner seeks $46,930.56 in outstanding costs, including the filing fee, medical record

retrieval costs, mailing costs, and costs associated with two experts: Omid Akbari, Ph. D., and John

Hixson, M.D. Mot. at 24. Documentation was provided for the Court's filing fee, medical records

requests, copying expenses, and mailing expenses, and I grant these costs in full.

Drs. Akbari and Hixson also submitted invoices for the work they performed. Dr. Hixson

prepared two reports, invoicing $7,250.00 for his time (14.5 hours for work performed in 2024 at

$500 per hour). Mot. at 48–49. This rate is consistent with what has been issued in the past for Dr.

Hixson’s work, and I find his time spent on this matter reasonable. See, e.g., Askins, 2024 WL

4930691 at *3; Marshall v. Sec'y of Health & Hum. Servs., No. 21-1445V, 2024 WL 3407635, at

*3 (Fed. Cl. Spec. Mstr. June 11, 2024). Therefore, I grant Dr. Hixson’s fees in full.

Dr. Akbari prepared two reports, billing the significantly greater sum of $38,060.00

(claiming 69.2 hours for work performed in 2023 and 2024 at $550 per hour). Mot. at 42–45. Special

Masters have repeatedly found that an hourly rate of $550 an hour for Dr. Akbari’s work is

excessive, however, and have reduced his rate to $500 an hour. See, e.g., Williams v. Sec'y of Health

& Hum. Servs., No. 19-1269V, 2024 WL 1253768, at *3 (Fed. Cl. Spec. Mstr. Feb. 28, 2024);

Bristow v. Sec'y of Health & Hum. Servs., No. 19-457V, 2022 WL 17821111, at *5-6 (Fed. Cl.

Spec. Mstr. Nov. 15, 2022) (listing cases in which Dr. Akbari has been awarded $500.00 per hour).

In keeping with past awards, I shall reduce Dr. Akbari’s rate to $500 an hour.

In addition, the time Dr. Akbari spent on this case was somewhat excessive. Dr. Akbari

spent nearly 70 hours on the matter, reviewing medical records, medical literature, and then

preparing his written reports. Mot. at 42–45. This is over four times the time spent by Dr. Hixson

to perform comparable work. Dr. Akbari's billing practices have in prior cases been found to be

excessive or vague, and accordingly the time he devoted to a matter has been reduced. See, e.g.,

Nieves v. Sec'y of Health & Hum. Servs., No. 18-1602V, 2023 WL 7131801, at *5 (Fed. Cl. Spec.

Mstr. Oct. 2, 2023); Reinhardt v. Sec'y of Health & Hum. Servs., No. 17-1257V, 2021 WL

2373818, at *4 (Fed. Cl. Spec. Mstr. Apr. 22, 2021) (finding Dr. Akbari's billing to be “well in

excess of the time spent by other experts in cases of comparable complexity”).

Dr. Akbari’s hours were similarly excessive in the present case, and I shall reduce them by

20 percent (in keeping with my discretion to make across-the-board reductions, rather than line-

by-line detailed reviews of a bill/invoice). This results in a reduction of Dr. Akbari’s hours by

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13.84. 4 With both the reduction in hours and lowered hourly rate, Dr. Akbari’s overall reduction

in costs totals $10,380.00. 5

CONCLUSION

Based upon the above, and in the exercise of my discretion, I GRANT IN PART

Petitioners’ Motion for Attorney’s Fees and Costs, and award a total of $82,773.06 (reflecting of

$46,222.50 in attorney’s fees and $36,550.56 in costs) to be paid through an ACH deposit to

Petitioners’ counsel’s IOLTA account for prompt disbursement. In the absence of a motion

for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER

JUDGMENT in accordance with the terms of this Decision. 6

IT IS SO ORDERED.

/s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

4

Calculated by: (69.2 hours x (20% ÷ 100)) = 13.84

5

Calculated by: $38,060.00 – ((69.2 hours – 13.84 hours) x $500 an hour = $27,680) = $10,380.00

6

Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file

notices renouncing their right to seek review.

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