Opinion

Tupitza v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
May 6, 2026
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 40.5%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 24-0814V

RACHEL TUPITZA,

Chief Special Master Corcoran

Petitioner, Filed: March 26, 2026

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.

Nathaniel Trager, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On May 28, 2024, Rachel Tupitza 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 following an influenza vaccination she received on October 2, 2022.

Petition, ECF No. 1. On December 22, 2025, I issued a ruling on entitlement finding

Petitioner entitled to compensation. ECF No. 32. On January 20, 2026, I issued a decision

awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 36.

1Because 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 $46,179.96 (representing $41,431.00 in fees plus $4,748.96 in costs). Application for

Attorneys’ Fees and Costs (“Motion”) filed January 28, 2026, ECF No. 40. Furthermore,

counsel for Petitioner represents that no personal out-of-pocket expenses were incurred.

ECF No. 40 at 2.

Respondent reacted to the motion on February 2, 2026, indicating 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. However,

Respondent notes that certain fees sought in this case appear to be for administrative

tasks, such as finding contact information for medical providers, but are billed at standard

attorney rates. Respondents’ Response to Motion ECF No. 41. Petitioner filed no reply

thereafter.

I have reviewed the billing records submitted with Petitioner’s request and find a

reduction in the amount of attorney fees to be awarded appropriate, for the reason listed

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

2

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

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 2026 are reasonable and

consistent with our prior determinations and are therefore awarded herein.

However, numerous tasks performed by attorney Nathan Marchese in this matter

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). Although these billing entries reflect reasonably performed

tasks, 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. Application of the foregoing reduces the total amount of fees to be

awarded by $2,071.55. 4

3 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 the following: 4/16/2024 (24 entries), 5/23/2024,

5/28/2024 (2 entries), 5/29/2024 (2 entries), 8/13/2024 (2 entries), 8/14/2024, 8/27/2024, 9/3/2024,

10/22/2024, 10/28/2024. This is not an exhaustive list. ECF No. 40-2 at 1-25.

4

This amount is calculated as follows: $41,431.00 x 0.05 = $2,071.55.

3

ATTORNEY COSTS

Petitioner has otherwise provided supporting documentation for all claimed costs.

ECF No. 40-4 at 1-28. I find the requested costs reasonable and hereby award them in

full.

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 attorneys’ fees and costs

in the total amount of $44,108.41 (representing $39,359.45 in fees plus $4,748.96 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. 5

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice

renouncing their right to seek review.

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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