In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 16-1027V

Filed: March 20, 2019

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

SKYLEE BUTLER, * UNPUBLISHED

*

Petitioner, *

*

v. * Attorneys’ Fees and Costs

 *

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

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

Ashley Simpson, Esq., United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

On August 18, 2016, Crystal Butler filed a petition for compensation under the National 

Vaccine Injury Compensation Program on behalf of her then-minor daughter.

2 Skylee Butler 

(“Ms. Butler” or “petitioner”) was then substituted as petitioner on October 9, 2018 upon reaching 

the age of majority. ECF No. 44. Petitioner alleged that she received an HPV vaccine on August 

21, 2013, and thereafter suffered various injuries. Petition, ECF No. 1, at 1. On November 30, 

2018, petitioner filed an unopposed Motion to dismiss the petition, and on the same day the 

undersigned issued her Decision dismissing the petition for insufficient proof. ECF No. 46.

 

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 Because this unpublished 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 10, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF 

No. 45 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of

$40,279.37, representing $29,282.50 in attorneys’ fees and $10,996.87 in costs. Fees App at 2. 

Pursuant to General Order No. 9, Petitioner warrants that she has not personally incurred any 

expenses in pursuit of this litigation. Id. at 4. Respondent responded to the motion on March 5, 

2019, 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. 52. 

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, although petitioner 

was not successful in pursuing her claim, the undersigned finds that both elements have been met. 

First, the undersigned does not doubt that petitioner brought her claim in a good-faith belief that 

her vaccination played a causal role in her injury. Additionally, the claim possessed sufficient 

objective support to meet the second half of the reasonable basis test, and Respondent has not 

challenged the reasonable basis of the claim. Accordingly, a final award of attorneys’ fees and 

costs is proper.

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
3

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 

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 the following rates of compensation for the work of her attorneys: for 

Mr. Andrew Downing, $350.00 per hour for work performed in 2016, $375.00 per hour for work 

performed in 2017, and $385.00 per hour for work performed in 2018; and for Ms. Courtney Van 

Cott, $195.00 per hour for work performed in 2017 and $205.00 per hour for work performed in 

2018. Fees App. at 38-39. Petitioner also requests that paralegals be compensated at $100.00 per 

hour for work performed in 2016 and $135.00 per hour for work performed in 2017-2018. Id.

These rates are consistent with what the undersigned and other special masters have previously 

awarded Van Cott & Talamante attorneys and paralegals. See Cowles v. Sec’y of Health & Human 

Servs., No. 16-1164V, 2018 WL 2772312 (Fed. Cl. Spec. Mstr. Apr. 26, 2018); Carey v. Sec’y of 

Health & Human Servs., No. 16-828V, 2018 WL 1559805, at *6 (Fed. Cl. Spec. Mstr. Feb. 26, 

2018). Accordingly, no adjustment to the requested rates is necessary.

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 

 

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

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 

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).

Upon review, the undersigned finds the hours billed by Mr. Downing, Ms. Van Cott, and 

paralegal Robert Cain to be reasonable. The hours billed by paralegal Danielle Avery, however, 

contain several errors that warrant an overall reduction. First, Ms. Avery billed for administrative 

tasks such as payment of invoices for medical records. See, e.g., Fees App. at 15-18 (entries on 

7/28/16, 8/1/16, 8/3/16, 8/10/16,8/18/16, 9/7/16, 12/1/16, 5/22/17).4 Other administrative tasks 

charged for include scanning records, bates stamping, and otherwise preparing records for filing 

(entries on 11/22/16, 4/13/17, 12/8/17, 12/28/17,1/30/18). These tasks are not compensable under 

the Act.

Also concerning is that Ms. Avery appeared to view 0.2 hours as the minimum amount of 

time required to complete most tasks. For example, she routinely billed 0.2 hours to “receive, 

review and process” all filings made in this case, no matter how mundane or routine they may be, 

such as the notice of assignment to the undersigned, scheduling orders of the Court, and status 

reports filed by Respondent. She also routinely billed at least 0.3 hours to “finalize and 

electronically file” documents such as exhibits and status reports. In the undersigned’s experience, 

all of these tasks are typically billed at 0.1 hours, if they are billed for at all. Other special masters 

have previously noted that billing in minimum increments greater than 0.1 hours is not permissible 

in the Vaccine Program. See Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 

948371, at *2-3 (Fed. Cl. Spec. Mstr. Jan. 31, 2019); Meadows v. Sec’y of Health & Human Servs., 

No. 16-861V, 2018 WL 6292565, at *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). 

 

4 The examples listed herein are merely meant to be illustrative of an issue and are not intended 

to represent all such instances of the issue in the billing records.
5

Accordingly, the undersigned will reduce the total number of hours billed by Ms. Avery 

by 20%.5 The record indicates that she billed a total of 51.6 hours for a total of $6,063.00. Fees 

App. at 31. This results in a total reduction of $1,212.60.

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 $10,996.87 in costs for obtaining medical records, the Court’s filing fee, and the expert 

work of Dr. Yehuda Shoenfeld in reviewing the medical records and preparing an expert report. 

Fees App. at 33-40. Petitioner has provided adequate documentation for all of these costs, and the 

undersigned finds them to be reasonable and shall award them in full.6

Warranting reduction is petitioner’s claimed expenses for ingoing and outgoing faxes. 

Petitioner’s counsel has been notified previously that operating the office fax machine is part of a 

law office’s general overhead and thus separate costs should not be charged to individual cases. 

Sheridan, 2019 WL 948371, at*3; Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 

2017 WL 2480936, at *5 n.5 (Fed. Cl. Spec. Mstr. May 11, 2017). Other special masters have also 

held that costs associated with faxes are non-compensable. See Dashty v. Sec’y of Health & Human

Servs., No. 15-966V, 2018 WL 6990680, at *5 (Fed. Cl. Spec. Mstr. Nov. 21, 2018). The total 

amount billed for sending and receiving faxes in the instant case is $281.50. Fees Ap. At 40. 

Accordingly, the award of attorneys’ costs is reduced by $281.50.

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:

 

5 The undersigned notes that if these problematic billing practices continue, a larger reduction to 

attorneys’ fees may be made.

6 Although the undersigned finds the total amount requested as reimbursement for Dr. 

Shoenfeld’s work to be reasonable, the undersigned notes that the reasonableness of Dr. 

Shoenfeld’s requested hourly rate is not being considered at this time. Additionally, while the 

total number of hours billed by Dr. Shoenfeld (18.0) is reasonable for review of medical records, 

medical literature, and preparation of an expert report, Dr. Shoenfeld only presented two billing 

entries – ten hours for records and literature review and eight hours for writing the report. Entries 

such as these constitute block-billing, which is impermissible in the Vaccine Program whether it 

is done by attorneys or experts. Both Dr. Shoenfeld and petitioner’s counsel Mr. Downing have a 

plethora of experience in the Vaccine Program and are both no doubt aware of this requirement

for billing clarity. Counsel should be expected to notify experts to track their work with 

sufficient detail and should exercise care to make sure that invoices submitted to the Court for 

review and reimbursement contain this level of detail. Failure to provide sufficiently detailed 

invoices for experts in the future may result in a reduction of the amount reimbursed.
6

1) A lump sum in the amount of $38,785.27, representing reimbursement for Petitioner’s 

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

Downing of Van Cott & Talamante, PLLC.

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.7

IT IS SO ORDERED.

s/Mindy Michaels Roth

 Mindy Michaels Roth

Special Master

 

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

seek review. Vaccine Rule 11(a).