In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

DENNIS PICKENS, *

* No. 17-187V 

* Special Master Christian J. Moran

Petitioner, *

v. *

* Filed: September 20, 2019

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

* Attorneys’ fees and costs, interim

Respondent. * award

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

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

Darryl R. Wishard, United States Dep’t of Justice, Washington, D.C., for 

Respondent.

UNPUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

On February 8, 2017, Dennis Pickens (“Petitioner”) filed a petition under the 

National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa–10 through 34 (2012). 

Petitioner claims that he suffered from chronic inflammatory demyelinating 

polyneuropathy (“CIDP”) after receiving a measles-mumps-rubella (“MMR”) 

vaccine on February 9, 2015. Pet., filed Feb. 8, 2017, at 1. Petitioner’s counsel of 

record is Mr. Andrew Downing.

On July 4, 2017, the Secretary argued that compensation was not appropriate 

because petitioner’s progression of symptoms better supported a diagnosis of 

 

1 The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and 

Promotion of Electronic Government Services), requires that the Court post this decision on its 

website. This posting will make the decision available to anyone with the internet. Pursuant to 

Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical 

information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions 

ordered by the special master will appear in the document posted on the website.
2

Guillain-Barré syndrome than CIDP. Resp’t’s Rep. at 11–12. The Secretary also 

argued that, regardless of his diagnosis, none of petitioner’s treating physicians 

attributed his condition to the MMR vaccine, petitioner did not offer an expert 

report in support of his claim, and, at 73 days post vaccination, the onset of 

petitioner’s symptoms was outside the medically accepted period for CIDP. Id. at 

12–13.

To develop his case, petitioner filed an expert report from Dr. Robert J. 

Friedman, a specialist in neurology, pain medicine, and neuromuscular medicine. 

Exhibit 23. In rebuttal, the Secretary filed an expert report from Dr. Peter D. 

Donofrio, a neurologist. Exhibit A.

A fact hearing was held on June 11, 2019, when petitioner and three 

witnesses testified. Following the hearing, petitioner filed additional medical 

records, which completed the evidentiary record on the issue of petitioner’s 

neurological symptoms. See Order, issued July 17, 2019.

On July 15, 2019, petitioner moved for an award of attorneys’ fees and costs 

on an interim basis, requesting $53,371.00 in fees and $16,664.73 in costs, for a 

total of $70,035.73. Pet’r’s Mot. IAFC at 2, 4. For the reasons that follow, 

petitioner is awarded $56,238.28.

* * *

The requested fees include work performed and costs incurred through July 

15, 2019. Id., Exhibit A at 36. Petitioner argues that an award of interim fees and 

costs is appropriate in this case because the proceedings have been ongoing for 

“nearly two-and-a-half years without reimbursement to [p]etitioner for time and 

expenses.” Pet’r’s Mot. IAFC at 2.

The Secretary filed his response to petitioner’s motion on July 17, 2019. 

Resp’t’s Resp. The Secretary did not provide any objection to petitioner’s request. 

Id. at 2. Instead, he stated that he “defers to the Special Master to determine 

whether or not petitioner has met the legal standard for an interim fees and costs 

award. Id. The Secretary noted, however, that he “is satisfied that the statutory 

and other legal requirements for an award of attorneys’ fees and costs are met” in 

the instant case. Id.
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This matter is now ripe for adjudication.

* * *

Petitioner’s motion implicitly raises a series of sequential questions, each of 

which requires an affirmative answer to the previous question. First, whether 

petitioner is eligible under the Vaccine Act to receive an award of attorneys’ fees 

and costs? Second, whether, as a matter of discretion, petitioner should be 

awarded his attorneys’ fees and costs on an interim basis? Third, what is a 

reasonable amount of attorneys’ fees and costs? These questions are addressed 

below.

1. Eligibility for an Award of Attorneys’ Fees and Costs

As an initial matter, interim fee awards are available in Vaccine Act cases. 

Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). 

Since petitioner has not received compensation from the Program, he may be 

awarded “compensation to cover [his] reasonable attorneys’ fees and other costs 

incurred in any proceeding on such petition if the special master or court 

determines that the petition was brought in good faith and there was a reasonable 

basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). As the Federal Circuit has 

stated, “good faith” and “reasonable basis” are two separate elements that must be 

met for a petitioner to be eligible for attorneys’ fees and costs. Simmons v. Sec’y 

of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017).

“Good faith” is a subjective standard. Id.; Hamrick v. Sec’y of Health & 

Human Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 

19, 2007). A petitioner acts in “good faith” if he or she honestly believes that a 

vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 

2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary has 

not challenged petitioner’s good faith here, and there is little doubt that petitioner 

brought the claim with an honest belief that a vaccine injury occurred.

In contrast to good faith, reasonable basis is purely an objective evaluation 

of the weight of the evidence. Simmons, 875 F.3d at 636. Because evidence is 

“objective,” the Federal Circuit’s description is consistent with viewing the 

reasonable basis standard as creating a test that petitioners meet by submitting 
4

evidence. See Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013 

WL 6234660 at *12–13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013) (explaining that 

reasonable basis is met with evidence), mot. for rev. denied, 116 Fed. Cl. 276 

(2014).

Here, the report from the expert petitioner has retained, Dr. Friedman, 

together with testimony given by petitioner and three witnesses at the fact hearing, 

satisfy the reasonable basis standard. See Pet’r’s Exhibit 23. In his ten-page 

report, Dr. Friedman summarized the pertinent medical facts, explained why 

petitioner’s diagnosis of CIDP is more appropriate than GBS, and proposed a 

causation theory linking the MMR vaccine with petitioner’s injury. See id. In 

addition, petitioner and his three witnesses gave extensive testimony on the hearing 

date. See Tr. 11:12–167:4, 169:12–196:19, 198:2–213:7, 213:23–249:6.

2. Appropriateness of an Interim Award

Interim awards should not be awarded as a matter of right. Avera, 515 F.3d 

at 1352 (Fed. Cir. 2008). Instead, petitioners must demonstrate “undue hardship.” 

Id. The Federal Circuit noted that interim fees “are particularly appropriate in 

cases where proceedings are protracted and costly experts must be retained.” Id. 

The Circuit has also considered whether petitioners faced “only a short delay in the 

award” before a motion for final fees could be entertained. Id.

The Federal Circuit has not attempted to specifically define what constitutes 

“undue hardship” or a “protracted proceeding.” In the undersigned’s practice, 

interim fees may be appropriate when the amount of attorneys’ fees exceeds 

$30,000 and the case has been pending for more than 18 months. Petitioner clears

both hurdles.

3. Reasonableness of the Requested Amount

Under the Vaccine Act, a special master may award reasonable attorneys’ 

fees and costs. 42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are 

calculated by multiplying a reasonable hourly rate by a reasonable number of hours 

expended on litigation, the lodestar approach. Avera, 515 F.3d at 1347–48 

(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton ex rel. v. Sec’y of 

Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In light of the 
5

Secretary’s lack of objection, the undersigned has reviewed the fee application for 

its reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 

238 (2018).

A. Reasonable Hourly Rate

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. A 

petitioner’s counsel in the Vaccine Program is paid the forum rate unless the bulk 

of the work is performed in a locale other than the forum (District of Columbia) 

and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at 

1349. If these two requirements are met, the Davis County exception applies, and 

petitioner’s counsel is paid according to the local rate to avoid a “windfall.” Id.; 

see Davis Cty. Solid Waste Mgmt. and Energy Recovery Special Serv. Dist. v. 

United States Envtl. Prot. Agency, 169 F.3d 755, 757–60 (D.C. Cir. 1999).

For cases in which forum rates apply, 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, *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), motion for 

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

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.2

Petitioner requests attorneys’ fees for work performed by counsel, Andrew 

Downing, an associate, Courtney Van Cott, and two paralegals. Pet’r’s Mot. 

IAFC, exhibit A at 40. Petitioner requests that Mr. Downing be paid $350 per hour 

for work he performed in 2016, $375 per hour for 2017, and $385 per hour for 

2018 and 2019. Petitioner requests that Ms. Van Cott be paid $195 per hour for 

work she performed in 2016 and 2017 and $205 per hour for 2018 and 2019. 

 

2 The 2015–2016, 2017, 2018, and 2019 Fee Schedules can be accessed at: http://www.

cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are updated from 

the decision in McCulloch, 2015 WL 5634323.
6

Petitioner requests that the two paralegals be reimbursed $100 per hour for work 

they performed in 2016 and $135 per hour for 2017, 2018, and 2019.

The attorneys practicing at Van Cott & Talamante, located in Arizona, have 

repeatedly been found to be “in-forum” and therefore justified to the forum rates 

established in McCulloch, 2015 WL. Mr. Downing and his associates’ rates were 

recently analyzed by the undersigned in Abbott v. Sec’y of Health & Human 

Servs., No. 14-907V, 2019 WL 1856435, at *3 (Fed. Cl. Spec. Mstr. Mar. 19, 

2019). The rates awarded in Abbott are marginally less than the rates requested 

here. Although Abbott was issued three months prior to the submission of the 

present motion, petitioner is requesting a higher hourly rate without explaining the 

basis for the increase. Accordingly, the undersigned will adopt the rates set in 

Abbot for 2015 through 2018. Abbott, however, did not set rates for 2019. For 

2019, the undersigned finds the requested rates to be reasonable. This results in a 

reduction of $1,196.50.

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, 3 F.3d at 1521. The Secretary did not challenge any of the requested hours 

as unreasonable. 

Overall, the timesheets from Mr. Downing and his associates are sufficiently 

detailed that the activities can be assessed for reasonableness. Although most of 

the timesheet entries are reasonable, counsel’s paralegals billed time for filing 

documents in CM/ECF, sending faxes, and reviewing invoices. See Pet’r’s Mot. 

IAFC, Exhibit A at 7–20. Filing documents, organizing exhibits, and processing 

records and court orders, however, are clerical tasks for which attorneys and 

paralegals should not charge. See Hoskins v. Sec’y of Health & Human Servs., 

No. 15-071V, 2017 WL 3379270, at *3, 6–7 (Fed. Cl. Spec. Mstr. July 12, 2017); 

see also Floyd v. Sec’y of Health & Human Servs., No. 13-556V, 2017 WL 

1344623, at *13–14 (Fed. Cl. Spec. Mstr. Mar. 2, 2017) (noting that “some tasks 

performed by paralegals were clerical/secretarial in nature. Examples include 

scheduling status conferences, organizing exhibits, preparing compact discs, 

revising a short motion after an attorney’s review, and filing documents through 

the CM/ECF system”); Silver v. Sec’y of Health & Human Servs., No. 16-1019V, 
7

2018 U.S. Claims LEXIS 1058, at *15 (Fed. Cl. Spec. Mstr. July 31, 2018) (noting 

that “‘receiv[ing], review[ing,] and process[ing]’ records and court orders, and 

noting deadlines, are all clerical tasks”). The paralegals also billed time for 

perfunctory review of every document or simple docket entry, notably minute 

entries and non-pdf scheduling orders, filed in CM/ECF. Additionally, Mr. 

Downing billed time for clerical tasks, namely, drafting notices of filing, and 

arranging his hearing-related travel plans. This billing for clerical tasks merits a 

reduction of $2,757.22.

Moreover, unlike Mr. Downing, Ms. Van Cott appears to have billed her full 

rate for time spent traveling. See Pet’r’s Mot. IAFC, Exhibit A at 36. It is well 

established that the Vaccine Program will only compensate attorneys for travel 

time at one-half of their typical rate absent some evidence that case-related work 

was being performed for part of that time. Dougherty v. Sec’y of Health & Human 

Servs., No. 15-1333V, 2019 WL 1301903, at *3 (Fed. Cl. Spec. Mstr. Mar. 6, 

2019). Because Ms. Van Cott billed a total of 8.4 hours at $205.00 per hour on 

travel, this results in a reduction of $2,790.00.

Accordingly, taking into account the fee reductions described above, 

petitioner is awarded attorneys’ fees in the amount of $48,523.50.

C. Costs

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). Attorneys’ costs include expert 

time incurred while working on a case. Fester v. Sec’y of Health & Human Servs., 

No. 10–243V, 2013 WL 5367670, at *16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). 

Reasonable expert fees are determined using the lodestar method in which a 

reasonable hourly rate is multiplied by a reasonable number of hours. See

Chevalier v. Sec’y of Health & Human Servs., No. 15-001V, 2017 WL 490426, at 

*3 (Fed. Cl. Spec. Mstr. Jan. 11, 2017). Reasonable costs also include the costs of 

obtaining medical records and expenses incurred while traveling in relation to the 

claim. Reginelli v. Sec’y of Health & Human Servs., No. 14–972V, 2016 WL 

1161309, at *3 (Fed. Cl. Spec. Mstr. Mar. 1, 2016).
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Petitioner requests $16,664.73 in attorneys’ costs. Part of the costs incurred 

by petitioner is associated with acquiring medical records, paying the court filing 

fee, and ordering court transcripts, totaling $3,212.68. See Pet’r’s Mot. IAFC, 

Exhibit A at 37–39. These costs are reasonable and will be awarded.

The rest of the costs consists of petitioner’s and his attorneys’ travel costs 

for the hearing, the expert fees from Dr. Friedman, and Dr. Daniel Esquivel 

Jacobo’s fee to appear at the hearing. A petitioner’s request for reimbursement of 

costs must be reasonable. Indeed, “[p]etitioners are not given a blank check to 

incur expenses . . .” Perreira, 27 Fed. Cl. at 34. Moreover, providing 

documentation for a claimed cost does not necessarily make it reasonable. See,

e.g., Gabbard v. Sec’y of Health & Human Servs., No. 99-451V, 2009 WL 

1456434, at *8–9 (Fed. Cl. Spec. Mstr. Apr. 30, 2009) (special master denied 

compensation for petitioner’s purchase of clothing to attend a hearing, despite 

documentation). Similarly, when petitioners fail to carry their burden, such as by 

not providing appropriate documentation to substantiate a requested cost, special 

masters have refrained from awarding such costs. See, e.g., Gardner-Cook v.

Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. 

Spec. Mstr. Jun. 30, 2005).

Petitioner requests a total of $7,742.10 in travel costs. These include airfare

for petitioner and Mr. Downing to Washington, D.C. and Ms. Van Cott’s mileage 

to Puerto Peñasco in Mexico for the hearing, as well as meals, lodging, and 

transportation. See Pet’r’s Mot. IAFC, Exhibit A at 37–39. Although, the cost for 

Ms. Van Cott’s travel to Mexico is reasonable, the cost invoiced for petitioner’s 

and Mr. Downing’s flights to and from Washington, D.C. is exceptionally high. 

Review of the receipts submitted reveals that the elevated cost is due to the firstclass seats purchased, priced at $1,978.61 each. The Vaccine Program does not 

compensate for upgraded airline seats. See, e.g., Davis v. Sec’y of Health & 

Human Servs., No. 16-774V, 2019 WL 2281748, at *2 (Fed. Cl. Spec. Mstr. Apr. 

2, 2019) (citations omitted) (reducing first-class flight costs by 50 percent). 

Accordingly, the amount awarded for petitioner’s and Mr. Downing’s airline 

tickets is reduced to $600.00 each, resulting in a reduction of $5,430.95 to the 

attorneys’ costs requested. 

The undersigned also notes that petitioner’s and Mr. Downing’s costs for 

lodging at the Marriot Hotel are unjustifiably high. Their two nights of lodging 
9

totaled $2,361.78, or $590.44 per night. See Pet’r’s Mot. IAFC, Exhibit A at 69–

70. Petitioner has provided no explanation for such exorbitantly high lodging 

costs. Past attorney’s fees and costs decisions have recognized that there are many 

lodging options at various price ranges near the Office of Special Masters. See,

e.g., Van Vessem v. Sec’y of Health & Human Servs., No. 11-132V, 2018 WL 

3989517, at *9 (Fed. Cl. Spec. Mstr. Jul. 3, 2018) (reducing hotel cost award to 

$399 per night); Reichert v. Sec’y of Health & Human Servs., No. 16-697V, 2018 

WL 3989429, at *4 (Fed. Cl. Spec. Mstr. Jun. 20, 2018) (reducing hotel cost award 

to $420 per night); Salmins v. Sec’y of Health & Human Servs., No. 11-140V, 

2016 WL 806175, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2016) (reducing hotel cost 

award to $300 per night). Accordingly, the lodging compensation is reduced to 

$400 per night, resulting in a reduction of to the attorneys’ costs requested. The 

rest of the travel costs are reasonable and shall be awarded.

Lastly, petitioner requests $5,430.95 for Dr. Friedman’s expert fees and 

$279.00 for Dr. Jacobo’s fee to testify at the hearing. See Pet’r’s Mot. IAFC, 

Exhibit A at 38–39. The undersigned finds that Dr. Jacobo’s fee is reasonable and 

shall be awarded. 

Dr. Friedman provided two invoices. A review of both invoices is hindered 

by the fact that petitioner’s counsel, or one of his associates, placed the check paid 

out on top of each invoice, thus obscuring most of the invoice detailing the work 

performed by Dr. Friedman. Id. at 55, 57. Accordingly, Dr. Friedman’s fees are 

denied without prejudice. Petitioner can resubmit these fees in his final fees 

motion with the invoices clearly indicating the time spent by Dr. Friedman on each 

task performed.

In sum, petitioner is awarded attorneys’ costs in the amount of $7,714.78.

* * *

Accordingly, petitioner is awarded:

A lump sum of $56,238.28 in the form of a check made payable to 

petitioner and petitioner’s attorney, Andrew Downing.
10

This amount represents reimbursement of interim attorneys’ fees and other 

litigation costs available under 42 U.S.C. § 300aa-15(e). 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.3

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master

 

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

right to seek review. Vaccine Rule 11(a).