In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 16-303V 

Filed: October 23, 2017 

UNPUBLISHED 

JUDITH MAJORIE TIPTON,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU); 

Attorneys’ Fees and Costs; 

Research; Overhead Costs;

Excessive and Block Billing

Philip James Roth, Jr., Marshall, Roth & Gregory, P.C., Asheville, NC, for petitioner. 

Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent. 

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master: 

 

 On March 8, 2016, petitioner filed a petition for compensation under the National 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,

2

(the “Vaccine 

Act. Petitioner alleged that she suffered injuries, including Guillain-Barré Syndrome 

(“GBS”) “resulting from adverse effects of a trivalent influenza vaccination she received 

on December 30, 2013.” Petition at 1 (emphasis omitted); accord. Petition at ¶¶ 1, 28. 

On May 4, 2017, the undersigned issued a decision awarding compensation to 

petitioner based on the parties’ stipulation. (ECF No. 26). 

 

1

 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends 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). 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. 

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 

I. Petitioner’s Motion for Attorneys’ Fees and Costs

 On May 22, 2017, petitioner filed a motion for attorneys’ fees and costs. 

Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Motion”) (ECF No. 30). 

Petitioner requests attorneys’ fees in the amount of $42,085.90 and attorneys’ costs in 

the amount of $10,348.81. See 2

nd Attachment to Pet. Motion at 6, 8. In compliance 

with General Order #9, petitioner filed a signed statement indicating that petitioner 

incurred no out-of-pocket expenses. See 5

th Attachment to Pet. Motion (ECF No. 30-5). 

Thus, the total amount requested is $52,434.71. 

On June 6, 2017, respondent filed a response to petitioner’s motion. (ECF No. 

31). 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.” Id. 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. Respondent “respectfully recommends that the Chief Special 

Master exercise her discretion and determine a reasonable award for attorneys’ fees 

and costs.” Id. at 3. 

Petitioner filed no reply. 

II. Legal Standard for Determining the Amount of Fees and Costs 

 

Since petitioner was awarded compensation for his injury, he is entitled to an 

award of reasonable attorneys’ fees and costs. § 15(e)(1) (emphasis added). As the 

Federal Circuit noted, attorneys’ fees and costs were “not expected to be high” due to 

the “no-fault, non-adversarial system” set forth in the Vaccine Act. Saxton ex rel. v. 

Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993) (quoting H.R. REP.

NO. 99-908, at 36 reprinted in 1986 U.S.C.C.A.N. 6344, 6377). 

Reasonable attorneys’ fees are calculated by multiplying a reasonable hourly 

rate by a reasonable number of hours expended on litigation, the lodestar approach. 

Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) 

(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); Saxton, 3 F.3d at 1521. Although 

not explicitly stated in the statute, the requirement that only reasonable amounts be 

awarded applies to costs as well as fees. See Perriera v. Sec’y of Health & Human 

Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable 

expert costs are calculated using the same lodestar method as is used when calculating 

attorneys’ fees. Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009 WL 

1838979, at *37 (Fed. Cl. Spec. Mstr. June 12, 2009). 

Special masters have “wide latitude in determining the reasonableness of both 

attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 

753 (Fed. Cl. 1991). They are entitled to rely on their prior experience and, based on 

experience and judgment, may reduce the number of hours to an amount reasonable 
3 

for the work performed. Saxton, 3 F.3d at 1521. A line-by-line evaluation of the billing 

records is not required. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 

(Fed. Cl. 1991) aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). 

Furthermore, the special master may reduce a fee request sua sponte, apart from 

objections raised by respondent and without providing a petitioner notice and 

opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 

201, 209 (2009). 

The petitioner “bears the burden of establishing the hours expended, the rates 

charged, and the expenses incurred.” Wasson, 24 Cl. Ct. at 484. He “should present 

adequate proof [of the attorneys’ fees and costs sought] at the time of the submission.” 

Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a 

fee request hours that are excessive, redundant, or otherwise unnecessary, just as a 

lawyer in private practice ethically is obligated to exclude such hours from his fee 

submission.” Hensley v. Eckhart, 461 U.S. 424, 434 (1983). 

III. Reasonable Amount of Attorneys’ Fees and Costs

A. Appropriate Hourly Rates 

Petitioner seeks attorneys’ fees in the amount of $42,085.90 which reflects the 

following hourly rates: 

Mr. Philip Roth (attorney): $350 for 2014-16

$358 for 2017 

 Ms. Cindy Sprouse (paralegal): $125 for 2014-17

See 2

nd Attachment to Pet. Motion at 1-6. Along with her motion, petitioner submitted 

an affidavit from petitioner’s counsel indicated he has been practicing law since 1992. 

See 1

st Attachment to Pet. Motion. Thus, these rates are within the ranges of forum 

rates in the schedules found on the court’s website3

 which are based upon the ranges 

of forum rates set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 

2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).4 

 

3 See http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf

(last visited on Aug. 9, 2017) (for the OSM’s 2015-16 Fee Schedule); 

http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf (last 

visited on Aug. 9, 2017) (OSM’s 2017 Fee Schedule). 

4

 Although the parties in McCulloch did not seek review, much of the reasoning of the McCulloch decision 

was later examined approvingly in Garrison v. Sec’y of Health & Human Servs., No. 14-762V, 128 Fed. 

Cl. 99 (2016). 
4 

However, petitioner’s fee request includes entries for Mr. Roth and Ms. Sprouse 

which include travel time to and from petitioner’s home. See 2

nd Attachment to Pet. 

Motion at 2 (entries dated 6/25/14 (2nd and 3rd)). These entries, in the amounts of 2.00 

and 2.70 hours respectively, include a meeting with petitioner and her husband. In 

future billing statements, petitioner’s counsel should separate time spent traveling from 

time spent performing substantive work. It appears that petitioner’s home is 

approximately 30 minutes from the office of petitioner’s counsel. Thus, the undersigned 

will treat 1.00 hour of time billed for each Mr. Roth and Ms. Sprouse as travel time. 

In the Vaccine Program, special masters traditionally have compensated time 

spent traveling when no other work was being performed at one-half an attorney’s 

hourly rate. See Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL 

3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & 

Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 

2009); English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at 

*12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). Special masters should not use this rule as 

standard practice but rather “[e]ach case should be assessed on its own merits.” 

Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). “Even an 

automatic 50% award may be too high for an undocumented claim, given the possibility 

that an attorney may use the travel time to work on another matter or not to work at all 

while traveling.” Id. 

The undersigned finds the rates requested to be appropriate hourly rates for work 

performed by Mr. Roth and Ms. Sprouse in this case. The rates for 1.00 hour of travel 

time each for Mr. Roth and Ms. Sprouse will be reduced to 50 percent of their usual 

rate. This reduction results in a deduction of $237.50 ($175.00 for Mr. Roth and 

$62.50 for Ms. Sprouse). 

B. Reduction in Amount of Hours Billed 

1. Research 

Petitioner’s counsel, Mr. Roth, billed 22.00 hours for time spent researching 

Vaccine Program procedures and caselaw relevant to petitioner’s claim.5 All work was 

performed in 2015-16, and thus, is billed at Mr. Roth’s hourly rate of $350. 

The full amount of this time should not be compensated as “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). “An inexperienced attorney may 

not ethically bill his client to learn about an area of law in which he is unfamiliar. If an 

attorney may not bill his client for this task, the attorney may also not bill the Program 

 

5 See 2nd Attachment to Pet. Motion at 2-6 (entries dated 3/14/14, 2/4/15, 2/5/15 (2nd), 3/4/15, 3/5/15 (2nd), 

3/18/15 (2nd), 11/24/15, 2/9/16 (3rd), 2/11/16, 11/15/16, and 12/19/16 (2nd)). 
5 

for this task.” Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007 WL 

2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007). 

However, this is the first case in the Vaccine Program for petitioner’s counsel. 

Additionally, Mr. Roth performed high quality work in this case. There were numerous 

instances where Mr. Roth’s familiarity with caselaw, the Vaccine Rules, and Guidelines 

for Practice Under the National Vaccine Injury Compensation Program (“Guidelines”) 

aided the efficient conclusion of petitioner’s claim. Thus, the undersigned will 

compensate 8.00 hours of this time. The undersigned will not compensate hours billed 

by Mr. Roth for this type of general research in future cases.6

 The nonpayment of the 

remaining 14.00 hours results in a deduction of $4,900.00. 

2. Overhead Office Costs 

In several instances, petitioner seeks amounts which should be considered 

normal overhead office costs. For example, the billing records show entries totaling 

1.10 hours for payment of expenses and other secretarial work performed by Ms. 

Sprouse. See 2

nd Attachment to Pet. Motion at 2-3 (entries dated 7/24/14, 7/25/14, and 

10/8/15). It is clearly established that secretarial work “should be considered as normal 

overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S., 18 Cl. 

Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL 

630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other 

secretarial work is not permitted in the Vaccine Program.” Mostovoy v. Sec’y of Health 

& Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 

2016) (citing Rochester, 18 Cl. Ct. at 387). 

Additionally, petitioner seeks fees for time expended by Ms. Sprouse and Mr. 

Roth dealing with technical issues and researching the life care planner petitioner 

planned to retain. See 2

nd Attachment to Pet. Motion at 4 (entries dated 3/10/16 (2nd) 

and 8/17/16 (1st and 2nd)). This type of work is also considered administrative. See, 

Riggins v. Sec’y of Health & Human Servs., No. 99-382V, 2009 WL 3319818, at *17 

(Fed. Cl. Spec. Mstr. June 15, 2009). Nonpayment of these entries results in a 

deduction of $620.00.

3. Excessive and Block Billing 

 

Several entries in the billing records submitted show hours that are excessive for 

the task described. For example, petitioner seeks 1.50 hours of time for Mr. Roth to 

review the decision awarding compensation and to email respondent’s counsel, Ms. 

Gangi, regarding a joint notice not to seek review. See 2

nd Attachment to Pet. Motion at 

6 (entry dated 5/8/17 (2nd)). Most attorneys could perform each of these tasks in .10 to 

 

6

 The undersigned similarly compensated 8.00 hours of research performed by a petitioner’s counsel new 

to the Vaccine Program in Twerdok v. Sec’y of Health & Human Servs., No. 14-1237V, 2016 WL 

7048036, at *6 (Fed. Cl. Spec. Mstr. Aug. 4, 2016). In that case, the undersigned stressed that counsel 

had not billed time for research in her second case involving the same type of injury. Id. 
6 

.20 hours. The decision awarding compensation is a less than two page decision 

adopting the terms of the stipulation which Mr. Roth negotiated and reviewed just five 

days earlier. See id. (entry dated 5/3/17). 

Additionally, numerous billing entries list multiple tasks performed by Mr. Roth 

and Ms. Sprouse. This type of “block billing” is not appropriate in vaccine cases. See 

Barry v. Sec’y of Health & Human Servs., No. 12-39V, 2016 WL 6835542, at *4 (Fed. 

Cl. Spec. Mstr. Oct. 25, 2016); Mostovoy, 2016 WL 720969, at *5-6; Doe/11 v. Sec’y of 

Health & Human Servs., No. XX-XXXXV, 2010 WL 529425, at *8 (Fed. Cl. Spec. Mstr. 

Jan. 29, 2010). In many instances, some of the time is compensable and some is not. 

For example, in early January 2017, Mr. Roth indicates that he spent .80 hours 

performing research and emailing Ms. Gangi. See 2

nd Attachment to Pet. Motion at 6. 

(entry dated 1/4/17 (2nd)). The next month, Mr. Roth indicates he spent 1.20 hours 

reviewing the undersigned’s 15-Week Order and researching the process for requesting 

fees. See id. (entry dated 2/8/17 (2nd)). In each case, one task should be 

compensated, and the other should not. 

Due to excessive and block billing, the undersigned reduces petitioner’s entire 

fee award by 10 percent. See Willett v. Sec’y of Health & Human Servs., No. 15-252V, 

2017 WL 3298983, at *4 (Fed. Cl. Spec. Mstr. June 2, 2017) (reducing fee award by 20 

percent); Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016 WL 447770, at 

*5 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reducing fee award by 10 percent); Raymo v. 

Sec’y of Health & Human Servs., No. 11-654V, 2016 WL 7212323, at *18 (Fed. Cl. 

Spec. Mstr. Nov. 2, 2016) (reducing fee award by 20 percent), mot. for rev. denied, 129 

Fed. Cl. 691 (2016); see also Wasson, 24 Cl.Ct. at 484 (a line-by-line evaluation is not 

required in determining a reasonable number of hours expended), aff’d in relevant part, 

988 F.2d 131 (Fed. Cir. 1993). This adjustment results in a further deduction of 

$3,632.84.

C. Appropriate Amount of Costs 

Petitioner seeks reimbursement for costs in the amount of $10,348.81. See 2

nd

Attachment to Pet. Motion at 6-8. 

1. Research 

The amount sought includes $143.87 for research. See id. (entries dated 

3/17/14, 2/4/15, 2/6/15, 3/15/16 (2nd), and 11/7/16 (1st and 3rd)). Since the undersigned 

is paying attorneys’ fees for only a portion of the researched performed by petitioner’s 

counsel, she will pay only 50 percent of these costs. Thus, the costs sought are 

reduced by $71.94. 
7 

2. In House Copying and Postage 

Petitioner’s counsel also billed $423.79 for postage and in house copying costs. 

See id. Special masters generally have allowed in house copying costs at a specific 

amount per page, currently 20 or 25 cents. See Sabella, 86 Fed. Cl at 225; Fragoso v. 

Sec’y of Health & Human Servs., No. 08-236V, 2011 WL 300139, at *3 (Fed. Cl. Spec. 

Mstr. Jan. 6, 2011) (awarding copying costs at 20 cents per page); Picciotti v. Sec’y of 

Health & Human Servs., No. 99-506V, 2010 WL 3920511, at *8 (Fed. Cl. Spec. Mstr. 

Sept. 14, 2010) (awarding copying costs at 20 cents per page); English, 2006 WL 

3419805, at *15 (awarding copying costs at 25 cents per page). Petitioner has 

requested copying costs at 20 cents a page which the undersigned finds is an 

appropriate rate. 

The amount of entries for in house copying and postage, however, seems 

excessive. There are more than 70 such entries. Furthermore, none of these entries 

includes a description beyond “Postage Expense” or “Copy Expense.” See 2

nd

Attachment at 6-8. Comparing the billing records of attorney and paralegal work 

indicates some of these entries were, most likely, for record requests. See id. at 2-8. It 

also appears that petitioner’s counsel may have been printing, copying, and individually 

mailing all documents to petitioner. Although petitioner’s counsel should be 

commended for keeping petitioner informed of the activity in her case, it seems there is 

a more efficient manner of doing so. Because these costs seem excessive and have 

vague descriptions, the undersigned will reduce them by 10 percent, resulting in a

deduction of $42.38. 

3. DVDs 

Petitioner seeks costs in the amount of $40.00 for three different DVD purchases. 

See id. at 7-8 (entries dated 3/8/16, 4/28/16, and 9/2/16). The cost of office supplies 

such as paper, pens, labels, and CDs has been disallowed as overhead expenses. See 

Whitener v. Sec’y of Health & Human Servs., No. 06-477V, 2011 WL 1467919, at *8 

(Fed. Cl. Spec. Mstr. Mar. 25, 2011); Lamar v. Sec’y of Health & Human Servs., No. 99-

584V, 2008 WL 3845157, at *15 (Fed. Cl. Spec. Mstr. July 30, 2008) (citing Borger v. 

Sec’y of Health & Human Servs., No. 90-1066V, 1993 WL 540817, at *2 (Fed. Cl. Spec. 

Mstr. Dec. 16, 1993). One special master has allowed the cost of folders used to file 

medical records because the folders were required by the court at that time. See 

Corder v. Sec’y of Health & Human Servs., No. 97-125V, 1999 WL 1427753, at *11 

(Fed. Cl. Spec. Mstr. Dec. 22, 1999). 

In this case, petitioner filed her medical records on CDs on March 16, 2016. See 

Exhibits 1-11 (ECF No. 8). Only one purchase of DVDs occurred prior to that date. See 

2

nd Attachment to Pet. Motion at 7 (entry dated 3/8/16 (2nd)). Additionally, the court 

does not require that medical records be filed on CDs, but rather encourages electronic 
8 

filing.7 Thus, the amount requested for these three purchases is denied. The amount of 

costs is further reduced by a deduction of $40.00. 

4. Costs for Life Care Planner 

Petitioner has submitted adequate documentation regarding the costs sought for 

petitioner’s life care planner in this case. See 4

th Attachment to Pet. Motion at 16-30. 

Petitioner’s life care planner billed 44.10 hours of work at a rate of $150 and 15.00 

hours of travel time at a rate of $75. See id. at 29. The undersigned approved the use 

of life care planners in this case. See, e.g., Order, issued Sept. 13, 2016 (ECF No. 13). 

Additionally, in an efficient use of Program resources, the life care planners for 

petitioner and respondent performed a joint home visit. See, e.g., id. The undersigned 

finds no reason to reduce the amount sought for petitioner’s life care planner. 

IV. Conclusion 

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

§ 15(e). The undersigned awards petitioner the following for attorneys’ fees and costs:

Requested attorneys’ fees: $42,085.90

Travel Rate Adjustment - $237.50

Research Deduction - $4,900.00 

Overhead Costs Deduction - $620.00

Excessive and Block Billing Deduction - $3,632.84

Adjusted Fees Total: $32,695.56

Requested attorneys’ costs: $10,348.81

Research Deduction - $71.94

Excessive and Vague Deduction - $42.38

Overhead Costs Deduction - $40.00

Adjusted Costs Total: + $10,194.49

Total Attorneys’ Fees and Costs Awarded: $42,890.05

 

7

 As noted in the Supplement to Appendix B, Electronic Case Filing Procedure in Vaccine Act Cases, 

III.10 at http://www.uscfc.uscourts.gov/sites/default/files/170801VaccineRules.pdf, medical records which 

exceed the court’s filing size can be divided into multiple pdf files. In the court’s latest guidance, the 

preference for electronic filing is clearly stated. See Vaccine Case Processing and Filing Pointers which 

can be found on the court’s website at 

http://www.uscfc.uscourts.gov/sites/default/files/17.10 Vaccine Filing Tips.pdf. 
9 

Accordingly, the undersigned awards the total of $42,890.058 as a lump 

sum in the form of a check jointly payable to petitioner and petitioner’s counsel 

Philip James Roth, Jr.

 The clerk of the court shall enter judgment in accordance herewith.9

IT IS SO ORDERED. 

s/Nora Beth Dorsey 

 Nora Beth Dorsey 

 Chief Special Master 

 

8

 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all 

charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. 

Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would 

be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs.,

924 F.2d 1029 (Fed. Cir.1991). 

9

 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.