In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

FLO RUTHERFORD, *

* No. 18-487V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: October 19, 2020

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

*

Respondent. *

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

Shealene P. Mancuso, Muller Brazil, LLP, Dresher, PA, for Petitioner;

Gabrielle M. Fielding, United States Dep’t of Justice, Washington, DC, for 

Respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS1

Pending before the Court is petitioner Flo Rutherford’s motion for final 

attorneys’ fees and costs. She is awarded $25,924.25.

* * *

On April 3, 2018, petitioner filed for compensation under the Nation 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.

1 Because this published decision 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). This posting means the 

decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 

18(b), the parties have 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.
2

Petitioner alleged that the influenza vaccine she received on October 10, 2016, 

which is contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), caused her to 

suffer from endocarditis. Petitioner further alleged that she suffered the residual 

effects of this injury for more than six months. On March 25, 2020, the parties 

filed a stipulation, which the undersigned adopted as his decision awarding 

compensation on the same day.

On April 13, 2020, petitioner filed a motion for final attorneys’ fees and 

costs (“Fees App.”). Petitioner requests attorneys’ fees of $26,103.90 and 

attorneys’ costs of $820.35 for a total request of $26,924.25. Fees App. at 2.

Pursuant to General Order No. 9, petitioner warrants that she has not personally 

incurred any costs related to the prosecution of her case. Id. On February 19, 2020, 

respondent filed a response to petitioner’s motion. Respondent argues that 

“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for 

respondent in the resolution of a request by a petitioner for an award of attorneys’ 

fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the 

statutory requirements for an award of attorneys’ fees and costs are met in this 

case.” Id at 2. Additionally, he recommends “that the Court exercise its

discretion” when determining a reasonable award for attorneys’ fees and costs. Id.

at 3. Petitioner did not file a reply thereafter.

* * *

Because petitioner received compensation, she is entitled to an award of 

reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question 

at bar is whether the requested amount is reasonable. 

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

§15(e). The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 

Cir. 2008). 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. Here, because 

the lodestar process yields a reasonable result, no additional adjustments are 

required. Instead, the analysis focuses on the elements of the lodestar formula, a 

reasonable hourly rate and a reasonable number of hours. 
3

In light of the Secretary’s lack of objection, the undersigned has reviewed 

the fee application for its reasonableness. See McIntosh v. Secʼy of Health & 

Human Servs., 139 Fed. Cl. 238 (2018)

A. Reasonable Hourly Rates

Under the Vaccine Act, special masters, in general, should use the forum 

(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. 

There is, however, an exception (the so-called Davis County exception) to this 

general rule when the bulk of the work is done outside the District of Columbia 

and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid 

Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. 

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work 

was done outside of the District of Columbia. 

Petitioner requests the following rates of compensation for the work of her

counsel, Ms. Shealene Mancuso: $225.00 per hour for work performed in 2017, 

$233.00 per hour for work performed in 2018, $250.00 per hour for work 

performed in 2019, and $275.00 per hour for work performed in 2020. The 

undersigned has reviewed the requested rates and finds them to be reasonable and 

consistent with what special masters have previously awarded to petitioner’s 

counsel at Muller Brazil, LLP for their Vaccine Program work. See, e.g. Wood v. 

Sec’y of Health & Human Servs., No. 15-1568V, 2019 WL 518521 (Fed. Cl. Spec. 

Mstr. Jan. 11, 2019); Ditsche v. Sec’y of Health & Human Servs., No. 18-511V, 

2020 WL 1815767 (Fed. Cl. Spec. Mstr. Mar. 10, 2020). Accordingly, the 

requested hourly rates are reasonable.

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). 

The Secretary also did not directly challenge any of the requested hours as 

unreasonable. 

The undersigned has reviewed the submitted billing entries and on the 

whole, the request is reasonable. However, a minor amount of time was billed for 

administrative tasks such as filing medical records by paralegals and attorneys 

billing time to direct the filing of those records. See Guerrero v Secʼy of Health & 

Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May 

22, 2015) (citing cases), mot. for rev. den’d in relevant part and granted in non-
4

relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-1753 (Fed. 

Cir. Apr. 22, 2016).

Additionally, the undersigned notes an overall excessive amount of time 

billed for the collection of medical records. See Fees App. at 7-11 (frequent entries 

of at least 0.5 hours to prepare and fax medical records requests). In the 

undersigned’s experience, it should take an experienced paralegal such as those 

employed at Muller Brazil, LLP approximately half of that amount of time to 

prepare and send records requests.

Based upon the undersigned’s overall perception of the time billed after 

review, a reduction of $1000.00 is appropriate in order to achieve “rough justice.” 

See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 

6459592, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 

826, 838 (2011). In sum, petitioner is awarded final attorneys’ fees of $25,103.90.

C. Costs Incurred

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). Petitioner requests a total of 

$820.35 in attorneys’ costs. This amount is comprised of acquiring medical 

records, the Court’s filing fee, and postage. Petitioner has provided adequate 

documentation supporting all of the requested costs, and all appear reasonable in 

the undersigned’s experience. Petitioner is therefore awarded the full amount of 

attorneys’ costs sought.

E. Conclusion

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $25,924.25 (representing 

$25,103.90 in attorneys’ fees and $820.35 in attorneys’ costs) as a lump sum in the 

form of a check jointly payable to petitioner and petitioner’s counsel, Ms. Shealene 

Mancuso.

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.2

2 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a 

joint notice renouncing their right to seek review. 
5

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master