In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

JOSEPHINE PLOTKIN, * 

 * No. 16-1249V 

 Petitioner, * Special Master Christian J. Moran 

v. * 

 * 

SECRETARY OF HEALTH * Filed: October 3, 2016 

AND HUMAN SERVICES, * 

 * 

 Respondent. * 

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

ORDER REGARDING ATTORNEYS’ FEES AND COSTS

 Vaccine Rule 13 and Section X of the Guidelines address aspects of applications for 

attorneys’ fees and costs. The parties should be familiar with those provisions. 

 The attorney representing the petitioner(s) should be aware that now, the Secretary does 

not routinely agree not to object to particular requests for attorneys’ fees. Thus, contrary to 

Guidelines, Section X, Chapter 4, the Secretary is unlikely to consent to the filing of a stipulation 

regarding attorneys’ fees. 

The Secretary’s lack of participation complicates the process of awarding attorneys’ fees 

and costs in at least two respects. First, without stipulations, the queue of cases awaiting 

adjudication of attorneys’ fees and costs is lengthening. Although the undersigned is aware of an 

attorney’s interest in receiving an award of attorneys’ fees and costs promptly, many attorneys 

are seeking awards in other cases, too. In addition, the merits of a petitioner’s claim that a 

vaccine harmed him or her are pending in numerous cases. 

 Second, without participation from the Secretary, the undersigned must review every 

application for attorneys’ fees and costs. The undersigned believes that Federal Circuit 

precedent defines the process for awarding attorneys’ fees even when the Secretary has not 

identified any deviations from the approved process. 

 In the undersigned’s experience, the most signature point of departure from Federal 

Circuit precedent comes in the context of an attorneys’ hourly rate. To minimize disputes over 

reasonable hourly rates, the following guidance is provided: 
2 

Reasonable Hourly Rates 

The process for determining a reasonable hourly rate for an attorney in the Vaccine 

Program contains three steps, set forth in Avera v. Sec’y of Health & Human Servs., 515 F.3d 

1343, 1348-50 (Fed. Cir. 2008). 

First, the special master is obligated to find a reasonable hourly rate in the locale where 

the attorney practices (say, St. Louis, Missouri). A reasonable local hourly rate is based upon the 

rates charged by similar attorneys performing similar work. Blum v. Stenson, 465 U.S. 886, n.11 

(1984). The legal work in the Vaccine Program is not particularly complex. Masias v. Sec’y of 

Health & Human Servs., 634 F.3d 1283, 1288-90 (Fed. Cir. 2011). The petitioner should submit 

some evidence supporting a proposed hourly rate. For a list of ways to establish a reasonable 

local hourly rate, see Guidelines, Section X, Chapter 3.B.1.c. 

Second, the special master is obligated to find a reasonable hourly rate for the forum, 

which is Washington, D.C. The need to consider the forum rate is part of the structure 

established by binding precedent. Avera, 515 F.3d at 1348. 

 In 2015, a law firm, which represents numerous petitioners in the Vaccine Program, 

submitted evidence regarding the forum rate. The extensive litigation led to a lengthy decision 

finding reasonable forum rates for attorneys with different levels of experience. McCulloch v. 

Sec'y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 

2015). As a decision of another special master, McCulloch does not bind the undersigned and 

different evidence could produce a different result. However, the undersigned has adopted the 

McCulloch findings. Avchen v. Sec’y of Health & Human Servs., No. 14-279V, 2015 WL 

9595415, at *3 (Fed. Cl. Spec. Mstr. Dec. 4, 2015). 

Third, the special master compares the local rate (say, the St. Louis, Missouri rate) to the 

forum rate (presumptively set forth in McCulloch). The comparison could produce three results: 

1. If the local rate is higher than the forum rate, then the special master awards the 

forum rate. See Rodgriguez v. Secʼy of Health & Human Servs., No. 06-559V, 2009 

WL 2568468, at *16-19 (Fed. Cl. Spec. Mstr. July 27, 2009) (discussing high cost 

exception to forum rate), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff’d 632 F.3d 

1381 (Fed. Cir. 2011). In this situation, the forum rate caps the attorney’s hourly rate. 

2. If the local rate is significantly different from (significantly lower than) the forum 

rate, then the special master awards the local rate. See Masias, 634 F.3d at 1287. In 

this situation, the structure avoids producing a windfall to the petitioner’s attorney. 

3. If the local rate is not “significantly different from” the forum rate, then the special 

master awards the forum rate. In this situation, the forum rate serves to make hourly 

rates relatively uniform. 
3 

For information about what constitutes a significant difference between the local rate and 

forum rate, see Hall v. Sec’y of Health & Human Servs., 640 F.3d 1351, 1356-57 (Fed. Cir. 

2011). 

Petitioner’s attorney should recognize that the Federal Circuit either requires or has 

endorsed much of this process. Petitioner’s attorney is advised to submit applications that 

conform to this structure. For example, if an attorney requests an hourly rate that exceeds the 

hourly rate found in McCulloch, the undersigned will require persuasive evidence and arguments 

to justify that result. 

Reasonable Number of Hours 

After finding a reasonable hourly rate, the special master finds a reasonable number of 

hours. Avera, 515 F.3d at 1347-48; see also Guidelines, Section X, Chapter 2.b & Chapter 

3.B.1.b. The foundation for this finding is the set of timesheets that the attorneys and other 

professionals prepare. The professionals are expected to record their time contemporaneously 

and billing in intervals of one-tenth of an hour (0.1 hours) is preferred. 

In submitting an application based on the timesheets, the petitioner’s attorney is expected 

to exercise “billing judgment.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 

(Fed. Cir. 1993). In some cases, an appropriate “billing judgment” is to charge for all the work 

listed on the invoice. In other cases, an appropriate “billing judgment” is to reduce or to 

eliminate time charged for a particular task. In this situation, the petitioner’s attorneys may 

usefully demonstrate that they have exercised their billing judgment by showing how they have 

eliminated time that is excessive, unreasonable, or redundant.1 For example, scenario 4, below, 

may lead to a lower amount of time than expected, and should be explained. 

To assist the petitioner’s attorney in presenting the fee application, the undersigned 

provides a list of issues in which the reasonableness of the activity raises some questions. These 

items are concerns; they are not bright-line tests. 

1. Multiple attorneys working on a case. A partner or senior attorney, who charges a 

high rate, may work with an associate, who charges a lower rate. However, 

participation of more than two attorneys tends to be reasonable only if the additional 

attorneys bring expertise that the other attorneys do not have. 

2. Attorneys charging attorney rates for performing paralegal tasks. An attorney’s high 

hourly rate reflects, in part, the attorney’s education and training. Tasks that do not 

require this background, such as collecting medical records, should be charged at a 

lower rate. 

3. Paralegals charging paralegal rates for performing clerical tasks. An attorney’s 

hourly rate is designed to produce income to pay for general overhead expenses, such 

as a secretary / clerical support. As such, the law firm should not charge separately 

for clerical work. 

 

1 In contrast, a general statement from the petitioner’s attorney to the effect that “I used my judgment” without any 

showing as to how the attorney adjusted the invoice is not likely to be persuasive. 
4 

4. Copying and pasting from one document to another. An attorney may charge a 

reasonable amount of time to prepare an original document (for example, 5 hours to 

set forth the facts in the petition). If the attorney copies that material into another 

document (for example, the factual portion of a pre-trial brief), the attorney may not 

charge the 5 hours again. This principle also forbids duplicate charging across cases. 

For example, if an attorney spends 3 hours writing a reply brief on attorneys’ fees in 

the Abbott case, the attorney may not charge 3 hours for filing a substantially 

identical brief in the Baker case. 

5. Block billing. Each discrete task should have a specific entry. A rule of thumb is that 

tasks that require more than one hour should be further refined. For example, “review 

of medical records – 5.0 hours” provides less information than “review of exhibit 1 – 

0.5 hours, review of exhibit 2 – 2.0 hours, review of exhibit 3 (hospital records 2.5 

hours).” 

6. Vague entries. The entries on the time sheet should stand alone. A rule of thumb is 

that entries should contain more than 10 words. For example, “review respondent’s 

expert report to prepare for tomorrow’s status conference” provides more information 

than “review file.” Even privileged communications should contain more detail than 

simply saying “Telephone call with client.” See Avgoustis v. Shinseki, 639 F.3d 

1340, 1344-45 (Fed. Cir. 2011) 

It would be helpful for the petitioner’s attorney to summarize the requested hourly rate 

and the requested number of hours for each person in a chart. Here is an example: 

Name Year Work 

Performed Hourly Rate Number of Hours

Subtotal

Partner 2015 $400 10 $4,000

Partner 2016 $405 2 $810

Associate 2015 $300 50 $15,000

Paralegal 2015 $100 20 $2,000

TOTAL $21,810

Applications that comply with these instructions are likely to be readily understood and 

may receive expedited consideration due to their ease of adjudication. In contrast, applications 

that do not comply with these instructions may be difficult to understand and may require a more 

time-intensive review. If the petitioner’s attorney has questions about the process for attorneys’ 

fees, the petitioner should request a status conference. The undersigned will assist in making this 

process as efficient as possible. 

Any questions regarding this order may be directed to my law clerk, Shannon Proctor, at 

(202) 357-6360. 

IT IS SO ORDERED. 

 s/Christian J. Moran 

 Christian J. Moran 

 Special Master