In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: December 3, 2020

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

MAESON DERR, * No. 18-751V

* Special Master Sanders

Petitioner, *

* UNPUBLISHED

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

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

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

Christine M. Becer, United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On May 29, 2018, Georgia Derr filed a petition for compensation pursuant to the National 

Vaccine Injury Compensation Program on behalf of her then-minor child, Maeson Derr 

(“Petitioner”).

2

42 U.S.C. §300aa-10 et seq. (2012). Petitioner alleged that she suffered an adverse 

reaction to the human papillomavirus vaccination she received on June 2, 2015. On August 10, 

2020, Petitioner filed an unopposed motion for a decision dismissing her petition, and on August 

10, 2020, the undersigned issued her decision dismissing the petition for insufficient proof. ECF 

No. 56.

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 Because this unpublished ruling contains a reasoned explanation for the action in this case, 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).
On August 27, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 61

(“Fees App.”). Petitioner requests total final attorneys’ fees and costs in the amount of $40,096.78, 

representing $36,560.50 in attorneys’ fees and $3,536.28 in attorneys’ costs. Fees App. at 5.

Pursuant to General Order No. 9, Petitioner has indicated that she has not incurred any out of 

pocket costs. Id. Respondent responded to the motion on September 10, 2020, stating that 

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 asking the Court to “exercise its 

discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, 

ECF No. 62. 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 Rate 

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

Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.

3

Petitioner requests the following hourly rates for the work of her counsel: 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 2018-2020; and for Ms. Courtney Van 

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

2018-2019, and $275.00 per hour for work performed in 2020. These rates are consistent with 

what Mr. Downing and Ms. Van Cott have previously been awarded for their Vaccine Program 

work, and the undersigned finds them to be reasonable herein. See, e.g., Olschansky v. Sec’y of 

Health & Human Servs., No. 17-1096V, 2020 WL 1027681 (Fed. Cl. Spec. Mstr. Feb. 21, 2020). 

b. Reasonable Number of Hours 

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 (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 434 (1983)). 

Upon review of the submitted billing records, the undersigned finds the time billed by Mr. 

Downing and Ms. Van Cott is reasonable. The timesheet entries are sufficiently detailed for an 

assessment to be made of the entries’ reasonableness. However, a reduction is necessary due to 

excessive paralegal time billed. Paralegals billed time on administrative tasks such as filing 

documents. Paralegal time was also excessive for review of and for preparing and receiving 

correspondence. These issues have previously been raised with the Van Cott & Talamante firm. 

Sheridan v. Sec’y of Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl.

Spec. Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-538V, 2019 WL

1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Upon review, a reasonable reduction for these 

issues is $1,000.00. Petitioner is therefore awarded final attorneys’ fees of $35,560.50.

c. Attorney 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 $3,536.28 in attorneys’ costs, comprised of acquiring medical records, postage, and work 

performed by petitioner’s medical expert, Dr. Mitchell Miglis. Fees App. at 41-43. Petitioner has 

provided adequate documentation of all these expenses and they appear reasonable for the work 

performed in this case.4 Petitioner is therefore awarded the full amount of costs sought.

3 The OSM Fee Schedules are available 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.

4

In finding the requested costs reasonable, the undersigned is not making any determination as to the 

reasonableness of the hourly rates of Petitioner’s medical expert in all cases. Rather, the undersigned is 

ruling that the requested amount is reasonable in light of the work performed in this case.
II. Conclusion 

In accordance with the Vaccine Act, 42 U.S.C. §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, other than the reductions delineated above, is reasonable. Based on the above analysis, the 

undersigned finds that it is reasonable to compensate Petitioner and her counsel as follows: 

Attorneys’ Fees Requested $36,560.50

(Reduction to Fees) - ($1,000.00)

Total Attorneys’ Fees Awarded $35,560.50

Attorneys’ Costs Requested $3,536.28

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $3,536.28

Total Attorneys’ Fees and Costs $39,096.78

Accordingly, the undersigned awards a lump sum in the amount of $39,096.78, 

representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check 

payable to Petitioner and Petitioner’s counsel, Mr. Andrew Downing.

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.5

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders 

Special Master

5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice 

renouncing the right to seek review.