In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-1135V

Filed: March 11, 2019

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

EDGAR C. KISBY, * UNPUBLISHED

*

Petitioner, *

*

v. * Attorneys’ Fees and Costs

 *

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Carol Gallagher, Esq., Linwood, NJ, for Petitioner.

Christine Becer, Esq., United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

On August 22, 2017, Edgar Kisby (“Mr. Kisby” or “Petitioner”) filed a petition pursuant 

to the National Vaccine Injury Compensation Program.2 Petitioner alleges that he developed 

Guillain-Barré Syndrome (“GBS”) after receiving the tetanus-diphtheria-acellular pertussis 

(“Tdap”) vaccine on August 16, 2016. Petition, ECF No. 1. On November 19, 2018, the parties 

filed a stipulation, which the undersigned adopted as her Decision awarding damages on the same 

day. ECF No. 30.

 

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 Because this unpublished 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

On December 4, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF 

No. 34 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of

$31,223.57 (representing $30,010.75 in attorneys’ fees and $1,212.82 in costs). Fees App at 3. 

Pursuant to General Order No. 9, Petitioner warrants that he has incurred costs of $400.00 in 

pursuit of this litigation. Id. Respondent responded to the motion on December 18, 2018, stating

“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are 

met in this case” and requesting that the undersigned “exercise her discretion and determine a 

reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3. ECF No. 33. Petitioner did 

not file a reply thereafter.

This matter is now ripe for consideration.

I. Legal Framework

The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” § 

15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is 

automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not 

prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” 

and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because Petitioner 

was awarded compensation, he is entitled to a reasonable award of attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what 

constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of 

Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial 

estimate of a reasonable attorneys' fees” is calculated 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)). That product is then adjusted upward or downward 

based on other specific findings. Id.

Special masters have substantial discretion in awarding fees and may adjust a fee request 

sua sponte, apart from objections raised by respondent and without providing petitioners with 

notice and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 86 Fed. Cl. 

201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee 

application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. 

Cl. 719, 729 (2011).

II. Discussion

a. Reasonable Hourly Rate

A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar 

services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d 

at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for 

the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's 

attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) 

(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees 
3

to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum 

jurisdiction” and “there is a very significant difference” between the local hourly rate and forum 

hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human 

Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery 

Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

For cases in which forum rates apply, McCulloch provides the framework for determining 

the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See

McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. 

Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and 

has issued a Fee Schedule for subsequent years.3

Petitioner requests that his attorney, Ms. Carol Gallagher, be compensated at the following 

rates: $363.00 per hour for work performed in 2017, and $400.00 per hour for work performed in 

2018. See generally Fees App. These rates are consistent with what Ms. Gallagher has previously 

been awarded for her work in the Vaccine Program. See Barabas v. Sec’y of Health & Human 

Servs., No. 16-1455V, 2019 WL 549062, at *2 (Fed. Cl. Spec. Mstr. Jan. 28, 2019); De Souza v. 

Sec’y of Health & Human Servs., 2018 WL 6920676 (Fed. Cl. 2018). Accordingly, no adjustment 

to the requested rates is required.

b. Hours Reasonably 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 ex rel. 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)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a 

single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing 

excessively for intra office communications, attorneys billing excessive hours, [and] attorneys 

entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 

703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be 

comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & 

Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). 

Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., 

McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at onehalf of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V, 

2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “it is 

 

3 The 2015-2016 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-

2016.pdf. The 2017 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf. 

The 2018 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20S

chedule%202018.pdf. The hourly rates contained within the schedules are updated from the 

decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 

(Fed. Cl. Spec. Mstr. Sept. 1, 2015).
4

inappropriate for counsel to bill time for educating themselves about basic aspects of the Vaccine 

Program.” Matthews v. Sec'y of Health & Human Servs., No 14–1111V, 2016 WL 2853910, at *2 

(Fed. Cl. Spec. Mstr. Apr. 18, 2016). Ultimately, 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.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number 

of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–

29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of 

Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

The overall hours spent on this matter (80.6) appear to be reasonable. The undersigned has 

reviewed the billing entries and finds that adequately describe the work done on the case and the 

amount of time spent on that work. None of the entries appear objectionable and Respondent has 

not identified any entries as objectionable either. Accordingly, the requested amount of attorneys’ 

fees shall be reimbursed in full.

c. Reasonable Costs

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

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests 

a total of $1,212.82 in costs. Fees App. Ex. B. This amount is for obtaining medical records. Petitioner 

has provided adequate documentation for the costs incurred and shall be reimbursed in full.

d. Petitioner’s Costs

Petitioner requests reimbursement of $400.00 he personally incurred in pursuit of this litigation. 

Fees App. at 3. This cost is for the Court’s filing fee. The undersigned finds this cost to be reasonable 

and shall award it in full.

III. Conclusion

In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is 

GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as 

follows:

1) A lump sum in the amount of $31,223.57, representing reimbursement for Petitioner’s 

attorneys’ fees and costs, in the form of a check payable to Petitioner and Ms. Carol 

Gallagher, Esq.; and

2) A lump sum in the amount of $400.00, representing reimbursement for Petitioner’s 

costs, in the form of a check payable to Petitioner.

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.4

 

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to 

seek review. Vaccine Rule 11(a).
5

IT IS SO ORDERED.

s/Mindy Michaels Roth

 Mindy Michaels Roth

Special Master