In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: January 8, 2020

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

KATHLEEN FOX, * No. 17-1738V

* Special Master Sanders

Petitioner, *

*

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Robert P. Goodwin, Walsh Roberts & Grace, Buffalo, NY, for Petitioner.

Darryl R. Wishard, United States Department of Justice, Washington, D.C., for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On November 6, 2017, Kathleen Fox (“Petitioner”) filed a petition for compensation 

pursuant to the National Vaccine Injury Compensation Program.242 U.S.C. §§ 300aa-10 to 34 

(2012). The petition alleged that the influenza (“flu”) vaccine Petitioner received on March 16, 

2016, caused her to suffer from Guillain-Barré syndrome (“GBS”). On September 6, 2019, the 

parties filed a stipulation, which the undersigned adopted as her decision awarding compensation 

on the same day. ECF No. 34.

On September 19, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF 

No. 38 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of 

 

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 Because this unpublished ruling contains a reasoned explanation for the action in this case, 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. Hereinafter, for ease 

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012).
2

$21,549.93 (representing $18,550.00 in fees and $2,999.93 in costs). Fees App. at 2. Pursuant to 

General Order No. 9, Petitioner warrants that she has not personally incurred any costs. Fees App. 

at 2. Respondent responded to the motion on September 23, 2019, indicating that he “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. 38). Petitioner did not file a reply 

thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The 

Federal Circuit has approved 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, 1348 (Fed. 

Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . 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)). 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.

It is “well within the special master’s discretion” to determine the reasonableness of fees.

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines 

v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant 

the special master wide latitude in determining the reasonableness of both attorneys’ fees and 

costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing 

records that indicate the work performed and the number of hours spent on said work. See Savin 

v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, 

should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate 

“in the community for similar services by lawyers of reasonably comparable skill, experience and 

reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove 

that the requested hourly rate is reasonable. Id.

a. Hourly Rates

The decision in McCulloch provides a framework for consideration of appropriate ranges 

for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of 

Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 

2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The 
3

Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee 

Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3

Petitioner requests that her attorney, Mr. Robert Goodwin, be compensated at $250.00 per 

hour for all work performed in this case, from 2017 to 2019. Other special masters have previously 

found this rate to be reasonable, and the undersigned finds it to be reasonable for this case as well. 

See Welch v. Sec’y of Health & Human Servs., No. 18-494V, slip op. at 4 (Fed. Cl. Spec. Mstr. 

Aug. 29, 2019). 

b. Hours 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, 3 F.3d at 1521.

Upon review, the undersigned finds the billed hours to be reasonable. Counsel has provided 

sufficiently detailed descriptions for the tasks performed, and upon review the undersigned does 

not find any of the billing entries to be unreasonable. Respondent has also not indicated that he 

finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final 

attorneys’ fees in the amount of $18,550.00.

c. Attorneys’ 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 $2,999.93 in attorneys’ costs. This amount is comprised of acquiring medical records, 

postage, the Court’s filing fee, and work done by Dr. Nicholas Silvestri in preparing a narrative 

report. Fees App. at 10-11. Petitioner has provided adequate documentation to support these costs 

and in the undersigned’s experience they are reasonable. Accordingly, Petitioner is entitled to the 

full amount of costs sought.

II. Conclusion

Based on all the above, the undersigned finds that Petitioner is entitled to the following 

award of reasonable attorneys’ fees and costs:

 

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-ForumRate-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%20Schedule

%202018.pdf. The 2019 Fee Schedule can be accessed at: 

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

%202019.pdf. The hourly rates contained within the schedules are updated from the decision in 

McCulloch, 2015 WL 5634323.
4

Attorneys’ Fees Requested $18,550.00

(Reduction to Fees) -

Total Attorneys’ Fees Awarded $18,550.00

Attorneys’ Costs Requested $2,999.93

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $2,999.93

Total Attorneys’ Fees and Costs $21,549.93

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has 

reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and 

costs is reasonable. Accordingly, the undersigned awards the following:

1) A lump sum in the amount of $21,549.93, representing reimbursement for Petitioner’s 

attorneys’ fees and costs, in the form of a check payable to Petitioner and her

attorney, Mr. Robert Goodwin.

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

IT IS SO ORDERED.

s/Herbrina D. Sanders

 Herbrina D. Sanders

Special Master

 

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).