Opinion

Thomas v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Aug 7, 2026
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 42.1%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 22-1594V

JOHN THOMAS,

Chief Special Master Corcoran

Petitioner,

v. Filed: July 6, 2026

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for

Petitioner.

Parisa Tabassian, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1

On October 25, 2022, John Thomas 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 he suffered Guillain Barré syndrome (“GBS”)

following an influenza vaccination he received on October 7, 2019. Petition at 1. On

January 9, 2024, I issued a ruling on entitlement finding Petitioner entitled to

compensation. ECF No. 20. On March 2, 2026, I issued a decision awarding damages

to Petitioner following briefing and Motions Day argument by the parties. ECF No. 37.

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 $47,118.92 (representing $41,528.60 for fees and $5,590.32 for costs). Application for

Attorneys’ Fees and Costs (“Motion”) filed May 19, 2026, ECF No. 44. Furthermore,

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

ECF No. 44 at 1.

Respondent reacted to the motion on May 29, 2026, 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 requests that the Court consider whether the briefing hours and motion

hearing preparation hours were excessive. Respondents’ Response to Motion at ECF No.

45. On June 2, 2026, Petitioner filed a reply to Respondents’ response addressing the

hours billed in the Motion and requesting that the amount of fees and costs in the Motion

be awarded. ECF No. 46.

Having considered the motion along with the invoices and other proof filed in

connection, I find a reduction in the amount of attorney fees to be awarded appropriate,

for the reason 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.

2

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

practice ethically is obligated to exclude such hours from his fee submission.” Hensley,

461 U.S. at 434.

ATTORNEY FEES

The rates requested for attorney work performed through 2025 are reasonable and

consistent with our prior determinations and will therefore be awarded herein. Petitioner

requests the rate of $679.00 for work performed in 2026 by attorney Michael Milmoe. This

represents a rate increase of $52.00 from the previous year. I find the requested rate

increase to be reasonable and it is hereby awarded herein.

Regarding the number of hours billed, I deem the total amount of time devoted to

briefing on damages to be excessive – although not egregiously so. See Petitioner’s Brief

on Damages, filed Sept. 24, 2024, ECF No. 32; Petitioner’s Reply to Respondents’

Response to Brief on Damages, filed Nov. 25, 2024, ECF No. 34. Petitioner’s counsel

expended approximately 14.7 hours drafting the damages brief and 12.0 hours drafting

the reply, totaling 26.7 3 hours. ECF No. 44-1 at 9.

My above calculation does not include time spent preparing the demand which

would have informed this later work, and I am therefore awarding fees associated with

that task in full. ECF No. 44-1 at 7 and 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 4 (entry dated

11/15/2022).

It is unreasonable for counsel to spend so much time briefing the matter of

damages in this case. I have identified numerous cases (which may reasonably be

compared to time spent in this matter), 4 in which attorneys have accomplished this task

3 This total is calculated as follows: 26.7 hours billed on 9/19/2024, 9/23/2024, 9/24/2024, 11/8/2024,

11/19/2024, and 11/25/2024, by attorney Elizabeth Vitt at a rate of $430.00.

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).

3

more efficiently. 5

Of course, having prevailed in this case, a fees award is generally appropriate,

ECF No. 37. 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 damages briefing (a total of 26.7

hours, or $11,481.00) by ten 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-shade accountant” in identifying with specificity each

objectionable task relevant to this one sub-area of work performed on the case. This

reduces the amount of attorney fees to be awarded by $1,148.10. 8

ATTORNEY COSTS

Petitioner has otherwise provided supporting documentation for all claimed costs.

ECF No. 44-2 at 2-22. I find the requested costs reasonable and hereby award them in

full.

5 See, e.g., Staffaroni v. Sec’y of Health & Hum. Servs., No. 21-1951V (Nov. 2, 2023) (19.2 and 5.4 hours

billed for drafting a damages brief and responsive damages brief, respectively); Granville v. Sec’y of Health

& Hum. Servs., No. 21-2098V (Oct. 25, 2023) (16.4 and 6.2 hours billed for drafting a damages brief and

responsive damages brief, respectively); Schenck v. Sec’y of Health & Hum. Servs., No. 21-1768V (Oct.

20, 2023) (8.0 and 3.2 hours billed for drafting a damages brief and responsive damages brief, respectively);

Weil v. Sec’y of Health & Hum. Servs., No. 21-0831V (Oct. 20, 2023) (14.5 and 1.5 hours billed for drafting

a damages brief and reviewing Respondent’s responsive damages brief, respectively); Hernandez v. Sec’y

of Health & Hum. Servs., No. 21-1572V (July 21, 2023) (14.7 hours billed for drafting a damages brief);

Miles v. Sec’y of Health & Hum. Servs., No. 20-0146V (July 20, 2023) (16.4 and 7.2 hours billed for drafting

a damages brief and responsive damages brief, respectively); Merchant v. Sec’y of Health & Hum. Servs.,

No. 20-0450V (July 12, 2023) (15.5 and 2.7 hours billed for drafting a damages brief and responsive

damages brief, respectively); Elenteny v. Sec’y of Health & Hum. Servs., No. 19-1972V (May 31, 2023)

(16.7 hours billed for drafting a damages brief); Miller v. Sec’y of Health & Hum. Servs., No. 21-1559V (May

30, 2023) (17.5 and 4.5 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.

6 Because the amount of excessive hours was not as egregious as in other cases, I will reduce the hours

billed by a lower amount than I otherwise would apply. See, e.g., Havis v. Sec’y of Health & Hum. Servs.,

No. 21-0583V, 2025 WL 2538903 (Fed. Cl. Spec. Mstr. July 31, 2025) (applying a 30 percent reduction).

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: (26.7 hrs. x $430.00 = $11,481.00 x .10) = $1,148.10.

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. I award a total of $45,970.82 (representing

$40,380.50 for fees and $5,590.32 for 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

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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