In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: June 15, 2021

* * * * * * * * * * * * * * UNPUBLISHED

ARNOLD LEO COMEAU, JR., *

*

Petitioner, * No. 19-198V

* Special Master Oler

v. *

 * Attorneys’ Fees and Costs

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Bradley S. Freedberg, Bradley S. Freedberg, P.C., Denver, CO, for Petitioner.

Emilie Williams, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES1

On February 4, 2019, Arnold Leo Comeau, Jr. (“Petitioner”) filed a petition for 

compensation pursuant to the National Vaccine Injury Compensation Program2alleging that he 

Guillain-Barré syndrome as a result of an influenza vaccine he received on February 2, 2016. Pet. 

at 1. On November 25, 2020, the parties filed a stipulation, which the undersigned adopted as her 

decision awarding compensation on November 30, 2020. (ECF No. 29).

On March 10, 2021, Petitioner filed an application for final attorneys’ fees. (ECF No. 35).

(“Fees App.”). Petitioner requests total attorneys’ fees in the amount of $18,008.50. Fees App. at 

1. Petitioner did not request reimbursement for any attorneys’ costs. Respondent responded to the 

motion on April 5, 2021, stating that “Respondent is satisfied the statutory requirements for an 

award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp. at 2. (ECF No. 36). 

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This 

means the Ruling 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, the undersigned 

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

public access. Because this unpublished Ruling contains a reasoned explanation for the action in this case, 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).

2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
2

Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable 

attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of 

reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, 

even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition 

was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 

F.3d 1343, 1352 (Fed. Cir. 2008). Here, because petitioner was awarded compensation pursuant 

to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs.

It is “well within the special master's discretion” to determine the reasonableness of fees. 

Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines 

v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant 

the special master wide latitude in determining the reasonableness of both attorneys' fees and 

costs.”). Applications for attorneys' fees must include contemporaneous and specific billing 

records that indicate the work performed and the number of hours spent on said work. See Savin 

v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate” 

is akin to the rate “in the community for similar services by lawyers of reasonably comparable 

skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing 

adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

Petitioner requests the following rates of compensation for his counsel: for Mr. Bradley 

Freedberg, $484.00 per hour for work performed in 2019-2021; and for Mr. Gurney Pearsall III, 

$350.00 per hour for work performed in 2020 and 2021. These rates require further discussion.

The 2019 rate requested for Mr. Freedberg is unreasonable because it exceeds the 

maximum amount prescribed by the OSM Attorneys’ Forum Hourly Rate Fee Schedule for 2019 

and because it exceeds what Mr. Freedberg has previously been awarded for his work in 2019. See 

Hergett v. Sec’y of Health & Human Servs., No. 17-2008V, 2020 WL 1080295, at *3 (Fed. Cl. 

Spec. Mstr. Feb. 4, 2020) (awarding Mr. Freedberg $390.00 per hour for work performed in 2019). 

The undersigned agrees with the reasoned analysis by the special master in Hergett and finds that 

$390.00 per hour is a reasonable hourly rate for Mr. Freedberg’s 2019 work. Concerning a 

reasonable rate for 2020, Mr. Freedberg had approximately 30 years of experience in 2020 placing 

him in the range of attorneys with 20-30 years of experience on the 2020 Fee Schedule. The 

undersigned, in considering Mr. Freedberg’s hourly rates for previous years, has noted that his 

rates should fall on the lower end of the range due to his relative lack of experience. Mackey v. 

Sec’y of Health & Human Servs., No. 16-1289V, 2018 WL 3596801, at *5 (Fed. Cl. Spec. Mstr. 
3

May 10, 2018). Since then, Mr. Freedberg has completed five Vaccine Program cases (inclusive 

of the instant case) and while his program experience is growing, overall the undersigned finds 

that a rate on the lower end of the scale is appropriate. Accordingly, the undersigned shall 

compensate Mr. Freedberg’s 2020 work at $410.00 per hour. Similarly, an appropriate rate for his 

work in 2021 is $455.00 per hour. Application of these hourly rates results in a reduction of 

$1,768.25.

3

Mr. Pearsall has been licensed to practice law since 2016, giving him approximately 4 years 

of legal experience when he began work on this case in 2020 and placing him at the bottom of the 

tier of attorneys with 4-7 years of experience on the OSM Fee Schedules. This appears to be Mr. 

Pearsall’s first Vaccine Program case. However, Mr. Pearsall’s requested rate of $350.00 per hour 

is excessive because exceeds what even the most experienced attorney in that tier could be awarded 

(which is $338.00 per hour). Upon review, a reasonable rate for Mr. Pearsall would be at the low 

end of the range because he has the lowest amount of experience for that tier and no demonstrated 

Vaccine Program Experience. Accordingly, a reasonable hourly rate for Mr. Pearsall in 2020 is 

$255.00 per hour and in 2021 is $270.00 per hour. Application of these rates results in a reduction 

of $2,193.25.4

b. Reasonable Hours Expended

Attorneys' fees are awarded for the “number of hours reasonably expended on the 

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for 

administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 

18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL 

2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

 The overall hours spent on this matter appear to be largely reasonable. However, a small 

reduction must be made for paralegal and administrative tasks billed at attorney hours (in this case, 

such tasks include faxing documents and bates stamping records). These issues are not new to Mr. 

Freedberg’s fees motions. See, e.g., Hergett, 2020 WL 1080295 at *4, Mackey, 2020 WL 2596801 

at *7. Upon review, a reduction of $500.00 is reasonable to offset the aforementioned issues. 

Petitioner is therefore awarded final attorneys’ fees in the amount of $13,547.00.

3 2019: ($484.00 per hour requested - $390.00 per hour awarded) * 16.35 hours billed = $1,536.90.

2020: ($484.00 per hour requested - $410.00 per hour awarded) * 2.95 hours billed = $218.30.

2021: ($484.00 per hour requested - $455.00 per hour awarded) * 0.45 hours billed = $13.05.

In petitioner’s motion, petitioner notes that a total of 20.25 hours were billed by Mr. Freedberg. However, 

in tabulating the hours necessary for the aforementioned reduction, the undersigned calculated a total of 

19.75 hours billed by Mr. Freedberg. Mr. Freedberg is advised to take greater care in preparing his fees 

motions in the future, as discrepancies in hours billed have previously been noted by other special masters 

who have reviewed his fees motions. See Hergett, 2020 WL 1080295 at *4 (“After reviewing all 

documentation filed by Mr. Freedberg, multiple discrepancies have been found within the billing records.”).

4 2020: ($350.00 per hour requested - $255.00 per hour awarded) * 21.15 hours billed = $2,009.25. 2021: 

($350.00 per hour requested - $270.00 per hour awarded) * 2.3 hours billed = $184.00.
4

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has 

reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and 

costs, other than the reductions delineated above, is reasonable. The undersigned finds that it is 

reasonable to compensate Petitioner and his counsel as follows:

Attorneys’ Fees Requested $18,008.50

(Reduction to Fees) - ($4,461.50)

Total Attorneys’ Fees Awarded $13,547.00

Accordingly, the undersigned awards a lump sum in the amount of $13,547.00, 

representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check 

payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Bradley Freedberg.

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

court shall enter judgment in accordance herewith.5

IT IS SO ORDERED.

s/ Katherine E. Oler

 Katherine E. Oler

Special Master

5 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. 

Vaccine Rule 11(a).