The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 24-812V
SHERRY ELLSWORTH,
Chief Special Master Corcoran
Petitioner, Filed: August 4, 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 24, 2024, Sherry Ellsworth 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 vaccination she received on November
1, 2022. Petition, ECF No. 1. On June 12, 2026, I issued a decision awarding damages
to Petitioner based on the parties’ stipulation. ECF No. 31.
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 $42,000.78 (representing $40,043.70 in fees plus $1,957.08 in costs). Motion for
Payment of Petitioner’s Attorneys’ Fees and Reimbursement of Case Costs (“Motion”)
filed June 25, 2026, ECF No. 35. Furthermore, counsel for Petitioner represents that no
personal out-of-pocket expenses were incurred. ECF No. 35 at 3.
Respondent reacted to the motion on July 7, 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. Respondent notes
in a footnote that the overall amount of fees sought in this case far exceeds those in
similar cases. Respondents’ Response to Motion at ECF No. 36. 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
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 through 2026 are reasonable and
consistent with our prior determinations and will therefore be awarded herein.
However, numerous tasks performed by attorneys Jonathan Svitak and 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 attorney fees to be awarded by $2,002.18. 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: 5/3/2024 (four entries), 5/24/2024 (2
entries), 5/29/2024, 9/12/2024 (two entries), 9/16/2024, 9/17/2024 (two entries), 9/18/2024 (six entries),
2/23/2025, 2/27/2025 (two entries). This is not an exhaustive list. ECF No. 35-2 at 6-22.
4
This amount is calculated as follows: $40,043.70 x 0.05 = $2,002.18.
3
ATTORNEY COSTS
Petitioner has otherwise provided supporting documentation for all claimed costs.
ECF No. 35-4 at 1-20. 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 $39,998.60 (representing $38,041.52 in fees plus $1,957.08 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