In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * *

CAROLYN WALL and STEPHEN *

WALL on behalf of their minor *

child, G.W., *

* No. 17-583V

Petitioners, * Special Master Christian J. Moran

*

v. * Filed: December 17, 2020

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

* * * * * * * * * * * * * * * * * * * ** *

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioners;

Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for 

Respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS1

On August 21, 2020, petitioners Carolyn and Stephen Wall moved for final 

attorneys’ fees and costs. They are awarded $17,729.51.

* * *

1 Because this published decision contains a reasoned explanation for the action in this 

case, the undersigned is required to post it on the United States Court of Federal Claims' website 

in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal 

Management and Promotion of Electronic Government Services). This posting means the 

decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 

18(b), the parties have 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, the 

undersigned agrees that the identified material fits within this definition, the undersigned will 

redact such material from public access.
2

The background for this case has been set forth previously in the 

undersigned’s prior decision awarding interim fees. See Interim Fees Decision, 

2019 WL 7667636 (Fed. Cl. Spec. Mstr. Dec. 17, 2019). The instant fees motion 

requests reimbursement for work performed from August 29, 2019 until the 

present. During that time, petitioner obtained and filed additional medical records

and an additional expert report. On July 29, 2020, petitioners filed an unopposed 

motion for a decision dismissing their petition, stating that, in light of litigation 

currently being initiated against Merck involving injuries to Gardasil vaccine 

recipients, petitioners “wish to pursue a third party action in district court against 

Merck directly.” Pet’rs’ Mot., filed July 29, 2020, ¶3. On August 19, 2020, the 

undersigned issued his decision dismissing the petition for insufficient proof.

On August 21, 2020, petitioners filed a motion for final attorneys’ fees and 

costs (“Fees App.”). Petitioners request attorneys’ fees of $14,791.00 and 

attorneys’ costs of $3,538.51 for a total request of $18,329.51. Fees App. at 4.

Pursuant to General Order No. 9, petitioner states that she did not personally incur 

any costs related to the litigation of this matter. Id. On September 1, 2020, 

respondent filed a response to petitioner’s motion. Respondent argues that 

“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for 

respondent in the resolution of a request by a petitioner for an award of attorneys’ 

fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the 

statutory requirements for an award of attorneys’ fees and costs are met in this 

case.” Id at 2. Additionally, he recommends “that the special master exercise his 

discretion” when determining a reasonable award for attorneys’ fees and costs. Id.

at 3. Petitioner did not file a reply thereafter.

* * *

Although compensation was denied, petitioners who bring their petitions in 

good faith and who have a reasonable basis for their petitions may be awarded 

attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, the undersigned 

has no reason to doubt the good faith of the claim, and although the claim was 

ultimately unsuccessful, the undersigned finds that petitioners’ claim has a 

reasonable basis throughout the entire case. Respondent also has not challenged the 

reasonable basis of the claim. A final award of attorneys’ fees and costs is 

therefore proper in this case.

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

§15(e). The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 
3

Cir. 2008). First, a court determines an “initial estimate ... by ‘multiplying the 

number of hours reasonably expended on the litigation times a reasonable hourly 

rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

Second, the court may make an upward or downward departure from the initial 

calculation of the fee award based on specific findings. Id. at 1348. Here, because 

the lodestar process yields a reasonable result, no additional adjustments are 

required. Instead, the analysis focuses on the elements of the lodestar formula, a 

reasonable hourly rate and a reasonable number of hours. 

In light of the Secretary’s lack of objection, the undersigned has reviewed 

the fee application for its reasonableness. See McIntosh v. Secʼy of Health & 

Human Servs., 139 Fed. Cl. 238 (2018)

A. Reasonable Hourly Rates

Under the Vaccine Act, special masters, in general, should use the forum 

(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. 

There is, however, an exception (the so-called Davis County exception) to this 

general rule when the bulk of the work is done outside the District of Columbia 

and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid 

Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. 

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work 

during this period was done outside of the District of Columbia. 

Petitioners request the following hourly rates for the work of their counsel 

at Van Cott & Talamante, PLLC: for Mr. Andrew Downing, $385.00 per hour for 

all work performed from 2019-2020, for Ms. Courtney Van Cott, $205.00 per hour 

for work performed 2019 and $275.00 per hour for work performed in 2020. The 

undersigned has previously found these rates to be reasonable for the work of Mr. 

Downing and Ms. Van Cott, and they are reasonable for work in the instant case as 

well. Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 2020 WL 

6582180 (Fed. Cl. Spec. Mstr. Oct. 16, 2020).

B. Reasonable Number of Hours 

The second factor in the lodestar formula is a reasonable number of hours. 

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). 

The Secretary also did not directly challenge any of the requested hours as 

unreasonable. 
4

Upon review of the submitted billing records, the undersigned finds the 

majority of the time billed to be reasonable. The timesheet entries are sufficiently 

detailed such that the undersigned can assess their reasonableness. However, a 

small reduction is necessary due to excessive paralegal time billed and a high 

hourly rate. Paralegals billed time on administrative tasks such as filing documents

and reviewing and paying invoices. These issues have previously been noted 

concerning Van Cott & Talamante paralegals. Second Fees Decision, 2018 WL 

7046894, at *3; Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019

WL 948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health

& Human Servs., No. 16-538V, 2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr.

Jan. 23, 2019). A reasonable reduction for these issues is $600.00.

Accordingly, petitioners are awarded final attorneys’ fees of $14,191.00.

C. Costs Incurred

Like attorneys’ fees, a request for reimbursement of costs must be 

reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. 

Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioners request a total of 

$3,538.51 in costs. This amount is comprised of acquiring medical records,

postage, and work performed by petitioner’s medical expert, Dr. Mitchell Miglis. 

Fees App. Ex. 1 at 15-16. Petitioners have provided adequate documentation 

supporting these costs and they appear reasonable in the undersigned’s experience.

Petitioners are therefore awarded the full amount of costs sought.

D. Conclusion

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $17,729.51 (representing 

$14,191.00 in attorneys’ fees and $3,538.51 in attorneys’ costs) as a lump sum in 

the form of a check jointly payable to petitioners and their attorney, Mr. Andrew 

Downing.

In the absence of a motion for review filed pursuant to RCFC Appendix B, 

the clerk of the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

2 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

s/Christian J. Moran

Christian J. Moran

Special Master