In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

ASHLEY DALTON, *

* No. 15-1465V

Petitioners, * Special Master Christian J. Moran

*

v. * Filed: April 16, 2021

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

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

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

Debra A. Filteau Begley, United States Dep’t of Justice, Washington, DC, for 

Respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS1

On September 1, 2020, petitioner Ashley Dalton moved for final attorneys’ 

fees and costs. She is awarded $46,458.27.

* * *

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

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

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.
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* * *

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 petitioner’s claim has a 

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

reasonable basis of the claim. A final award of reasonable 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.

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

2019 WL 965174 (Fed. Cl. Spec. Mstr. Jan. 30, 2019). The instant fees motion 

requests reimbursement for work performed from October 15, 2018 until the 

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

literature, an additional expert report, and briefs. On February 20, 2020, petitioner 

filed an unopposed motion for a decision dismissing her petition, stating that, in 

light of litigation currently being initiated against Merck involving injuries to 

Gardasil vaccine recipients, petitioner “wishes to pursue a third party action in 

district court against Merck directly.” Pet’rs’ Mot., filed Aug. 3, 2020, ¶3. On 

August 25, 2020, the undersigned issued his decision dismissing the petition for 

insufficient proof. 2020 WL 5800716 (Fed. Cl. Spec. Mstr. Aug. 31, 2020). 

On September 1, 2020, petitioner filed a motion for final attorneys’ fees and 

costs (“Fees App.”). Petitioner request attorneys’ fees of $39,328.00 and attorneys’ 

costs of $7,830.27 for a total request of $47,158.27 Fees App. at 3. 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 10, 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. 
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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. 

Petitioner requests the following hourly rates for the work of her counsel at 

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

work performed from 2018-2020, for Ms. Courtney Van Cott, $205.00 per hour for 

work performed 2018-2019 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. 

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

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

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

entries regarding the drafting of the brief (starting January 9, 2020) would benefit 

from some elaboration about the part of the brief on which the time was focused. 

In addition, a small reduction is necessary due to excessive paralegal time

billed and for duplicative tasks billed. Paralegals billed time on administrative 

tasks such as filing documents and reviewing and paying invoices. Additionally, 

review of routine orders and filings was billed by both counsel and paralegals. 

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 $700.00.

Given the prior reductions, counsel is advised that the failure to exercise 

appropriate billing judgment in future fee applications may result in further 

reductions. See Valdes v. Sec'y of Health & Human Servs., No. 99–310V, 2009 

WL 1456437, at *4 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (warning attorney that 

penalties may be necessary to motivate him to submit requests for fees that do not 

contain “erroneous, duplicative, or unreasonable entries”), mot. for rev. granted in 

non-relevant part and denied in non-relevant part, 89 Fed. Cl. 415 (2009).

Accordingly, petitioner is awarded final attorneys’ fees of $38,628.00.

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). Petitioner requests a total of 

$7,830.27 in costs. This amount is comprised of acquiring medical records, postage

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

Yehuda Shoenfeld. Fees App. Ex. 1 at 11. Petitioner has provided adequate 

documentation supporting these costs and they appear reasonable in the 

undersigned’s experience. Petitioner is 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 $46,458.27 (representing 

$38,628.00in attorneys’ fees and $7,830.27 in attorneys’ costs) as a lump sum in 
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the form of a check jointly payable to petitioner and her 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.

s/Christian J. Moran

Christian J. Moran

Special Master

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.