In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

LINDA D. KOOKER, * UNPUBLISHED

*

Petitioner, * No. 18-453V

*

v. * Special Master Gowen

* 

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ Fees and Costs;

* Voluntary Dismissal.

Respondent. *

*

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

Laurie C. TeWinkle, Law Offices of L.C. TeWinkle, LLC, Erie, PA, for petitioner.

Robert P. Coleman, Department of Justice, Washington, D.C., for respondent. 

DECISION ON ATTORNEYS’ FEES AND COSTS

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On October 7, 2019, Linda Kooker (“petitioner”), filed a motion for attorneys’ fees and 

costs. Petitioner’s Motion for Attorney Fees (“Fees. App.”) (ECF No. 36). For the reasons 

discussed below, I GRANT, petitioner’s motion for attorneys’ fees and costs and award a total 

of $6,756.45. 

I. Procedural History

On June 7, 2016, Linda Kooker (“petitioner”) filed a petition pursuant to the National 

Vaccine Injury Compensation Program.

2

 Petitioner alleged as a result of an influenza (“flu”) 

vaccine she received on December 2, 2016, she developed left shoulder adhesive capsulitis. 

Petition at ¶ 8. On October 2, 2019, petitioner filed a motion for a decision dismissing the 

 

1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the 

opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s 

website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:

(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that

includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the 

opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the 

court’s website without any changes. Id.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et 

seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §300aa 

of the Act. 
2

petition. ECF No. 33. The undersigned granted petitioner’s motion and petitioner’s claim was 

thereafter dismissed for insufficient proof. Decision (ECF No. 35).

On October 7, 2019, petitioner filed an application for attorneys’ fees and costs. Fees. 

App. Petitioner requests a total attorneys’ fees and costs in the amount of $6,756.45 

(representing $350 in attorneys’ fees and $946.45 in costs.) Fees App. at ¶ 2. Respondent 

responded to the motion on October 18, 2019 stating, “Respondent defers to the Special Master 

to determine whether the statutory requirements for an award of attorneys’ fees and costs are met 

in this case,” and if so requests the undersigned “determine a reasonable award for attorneys’

fees and costs. Respondent’s Response (Resp. Response”) at 3, 5 (ECF No. 37). 

This matter is now ripe for adjudication. 

I. Legal Standard

Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable 

attorneys’ fees and costs “if the special master determines that the petition was brought in good 

faith and there was a reasonable basis for which the petition was brought” even when a petition 

does not result in compensation for petitioner. 42 U.S.C. § 300aa-15(e)(1). 

The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. § 

300aa-15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human 

Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first 

determines the reasonable hourly rate, which is then applied to the number of hours reasonably 

expended on the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and 

the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 

482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the 

motion is filed. Id. at 484 n.1. The special master has the discretion to reduce awards sua 

sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of Health & 

Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human 

Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99-537V, 2008 WL 2066611 (Fed. Cl. Spec. 

Mstr. Apr. 22, 2008). Special masters may look to their experience and judgment to reduce the 

number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of 

Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the 

billing records is not required. Wasson, 24 Cl. Ct., aff’d in relevant part, 988 F.2d 131 (Fed Cir. 

1993) (per curiam).

II. Analysis

I find no reason to doubt the good faith and reasonable basis for which the claim was 

brought. Petitioner asserted that she suffered left shoulder adhesive capsulitis as a result of 

receiving the flu vaccine. Petition at ¶ 8. On March 3, 2017, three months after receiving the flu 

vaccine, petitioner reported to her primary care physician that she was experiencing pain in her 

left shoulder for the first time. See Scheduling Order (ECF No. 31). However, while petitioner 
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endorsed that she experienced pain immediately after receiving the flu vaccine in her affidavit, 

there was still a substantial amount of time that passed between the vaccine and first reported 

pain to a medical professional. Id. at 2. I recommended that petitioner’s counsel consult with her 

client to discuss dismissing the claim. Id. at 3. Petitioner filed the motion to dismiss the petition 

within a reasonable time after the status conference, thus not utilizing more of the Court or 

respondent’s time in litigating the case.

Although it appeared unlikely that petitioner would be entitled to recovery after a careful 

review of the case, including the medical records and expert reports filed, I find that petitioner 

initially had evidence of a medical condition that could be caused by vaccination. Additionally, 

by dismissing the claim after a review of the facts at the status conference, the amount of fees 

and costs were limited. Accordingly, I find that petitioner should be awarded reasonable 

attorneys’ fees and costs. 

III. Reasonable Attorneys’ Fees and Costs

A. Hourly Rate 

Petitioner requests compensation for her attorney, Ms. Laurie TeWinkle. Pet. Fees App. 

at 1. Petitioner requests Ms. TeWinkle be compensated at a rate of $350.00 per hour for work 

done in 2017-2019. Fees App. Exhibit (“Ex.”) 3. 

Ms. TeWinkle has been awarded these attorney rates by other special masters in the 

Vaccine Program. See Smith. Sec’y of Health & Human Servs., No. 15-1379, 2016 WL 3704925 

(Fed. Cl. Spec. Mstr. June 2, 2016). As a result, I find the requested attorney rates to be 

reasonable and will award those hourly rates in full.

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). As the Secretary did specifically object to 

the number of hours petitioner requests, I have reviewed the fee application for its 

reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018). A 

line-by-line evaluation of the invoiced hours is not required; instead I may rely on my experience 

to evaluate the reasonableness of the hours expended. Wasson, 24 Cl. Ct. at 484. Petitioner 

requests a total of $5,810.00 in attorneys’ fees for 16.6 hours of work performed by Ms. 

TeWinkle. Given that petitioner’s counsel was responsive to the Court’s recommendation to 

dismiss and did so in a timely manner, I find that the hours billed are reasonable and no 

reductions are necessary. Accordingly, petitioner is awarded attorneys’ fees in the amount 

of $5,810.00.

C. Attorneys’ Costs 

Like attorneys’ fees, a request for reimbursement for 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 $12,746.01 in costs. This request includes the cost of filing the petition, obtaining medical 
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records, and postage. These costs are typical of the expenses in the Vaccine Program. 

Additionally, counsel provided receipts and invoices related to these costs. Accordingly, 

petitioner is awarded attorneys’ costs in the amount of $946.45. 

IV. Conclusion

 In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is 

GRANTED. Accordingly, I will award the following:

1) A lump sum in the amount of $6,756.45, representing reimbursement for 

petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to 

petitioner and her counsel, Laurie TeWinkle.

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

Court shall enter judgment in accordance herewith. 

3

IT IS SO ORDERED. 

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

 

3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 

11(a).