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In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-1885V

Filed: March 29, 2021

UNPUBLISHED

JEFFREY COOPER,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.

Lynn Christina Schlie, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On February 23, 2021, petitioner moved for an award of interim attorneys’ fees 

and costs in the amount of $56,591.67. (ECF No. 49.) In response, respondent 

deferred to the special master regarding both the amount and appropriateness of an 

award of interim attorneys’ fees and costs. (ECF No. 51.) However, respondent did 

note that “respondent is satisfied the statutory requirements for an award of attorneys’ 

fees and costs are met.” (Id. at 2.) For the reasons discussed below, I award petitioner 

interim attorneys’ fees and costs in reduced amount of $55,972.87.

I. Procedural History

On December 7, 2018, petitioner filed this claim, under the National Childhood 

Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that as a result of his

pneumococcal conjugate (“PVC”) vaccination he suffered Gullain Barre Syndrome 

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will 

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government 

Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic 

Government Services). This means the decision 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 the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.

Special Master Horner

Interim Attorneys’ Fees and 

Costs Decision
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(“GBS”). (ECF No. 1.) This case was first assigned to Special Master Sanders and 

then subsequently reassigned to my docket on August 29, 2019. (ECF Nos. 4, 25.) 

On December 20, 2019, respondent filed his Rule 4(c) report, recommending 

against compensation. (ECF No. 30.) Subsequently, on February 27, 2020, petitioner 

filed an expert report from Dr. Norman Latov in support of his claim and respondent filed 

a responsive expert report from Dr. Brian C. Callaghan on May 29, 2020. (ECF Nos. 

32, 36.) Further supplemental expert reports were also filed. (ECF Nos. 38, 41.) On 

August 20, 2020, I held a status conference to discuss the issues of this case including 

petitioner’s theory of causation and ordered Dr. Latov to file a supplemental report 

addressing the issues discussed. (ECF No. 42.) Petitioner filed an additional report 

from Dr. Latov on November 18, 2020 and respondent filed a further report from Dr. 

Callaghan on January 5, 2021. (ECF Nos. 44, 47.) 

Petitioner filed the instant motion for interim attorneys’ fees and costs along with 

General Order No. 9 representing petitioner’s costs on February 23, 2021. Respondent 

filed his response on March 1, 2021, and no reply was filed. (ECF Nos. 49-51.) 

Accordingly, petitioner’s motion for interim attorneys’ fees and costs is now ripe for 

resolution. 

II. An Award of Interim Attorneys’ Fees and Costs is Appropriate

Section 15(e)(1) of the Vaccine Act allows for the special master to award 

“reasonable attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are 

entitled to an award of reasonable attorneys' fees and costs if they are entitled to 

compensation under the Vaccine Act, or, even if they are unsuccessful, if the special 

master finds that the petition was filed in good faith and with a reasonable basis. Avera 

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

Additionally, the Federal Circuit has concluded that interim fee awards are 

permissible and appropriate under the Vaccine Act. Shaw v. Sec’y of Health & Human 

Servs., 609 F.3d 1372 (Fed. Cir. 2010); Avera, 515 F.3d at 1352. In Avera, the Federal 

Circuit stated, “[i]nterim fees are particularly appropriate in cases where proceedings 

are protracted and costly experts must be retained.” Id. In denying an interim fee 

award, the Avera court reasoned, “The amount of fees here was not substantial; 

appellants had not employed any experts; and there was only a short delay in the award 

pending the appeal.” Id. In Shaw, the Federal Circuit clarified that “where the claimant 

establishes that the cost of litigation has imposed an undue hardship and there exists a 

good faith basis for the claim, it is proper for the special master to award interim 

attorneys’ fees.” 609 F.3d at 1375. 

In his response, respondent indicated that the statutory requirements were met in 

this case. (ECF No. 51, p. 2.) I agree. Additionally, petitioner’s request for interim 

attorneys’ fees and costs is made after more than two years of litigation within the 

entitlement phase of this case and after petitioner incurred costs for providing multiple 

expert reports to support his claim. Moreover, the timing of the ultimate resolution of 
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this case remains unknown. Accordingly, I find that petitioner’s request for an award for 

interim attorneys’ fees and costs is reasonable at this juncture. 

III. Reasonableness of the Requested Award

a. Attorneys’ Fees

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.”). The Federal Circuit has approved 

the lodestar approach to determine reasonable attorneys’ fees and costs under the 

Vaccine Act. Avera, 515 F.3d at 1347. This is a two-step process. Id. at 1347-48. 

First, a court determines an “initial estimate...by ‘multiplying the number of hours 

reasonably expended on the litigation times a reasonable hourly rate.’” Id. (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. 

A reasonable hourly rate is “the prevailing market rate defined as the rate 

prevailing in the community for similar services by lawyers of reasonably comparable 

skill, experience, and reputation.” Avera, 515 F.3d at 1348 (citation and quotation 

omitted). The decision in McCulloch provides a further 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), motions for recons. denied, 2015 

WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office of Special Masters has 

subsequently updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee 

Schedules for 2015-2016, 2017, 2018, 2019 and 2020 can be accessed online.2

In this case, petitioner is seeking $31,137.50 in interim attorneys’ fees for work 

performed in 2017 through 2021.

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 I have reviewed the billing records submitted with 

petitioner’s request, and in my experience, the hourly rates billed for 2017 through 2021

for attorney time, law clerk time, and paralegal time, are all reasonable and also in 

accord with prior awards made by other special masters.

Turning next to the requested hours expended, special masters may rely on their 

experience within the Vaccine Program to determine the reasonable number of hours 

2 Each of the Fee Schedules for 2015 through 2021 can be accessed at 

http://www.cofc.uscourts.gov/node/2914. The hourly rates contained within the schedules are derived 

from the decision in McCulloch, 2015 WL 5634323. The schedules for 2017, 2018, 2019, 2020, and 2021

are adjusted for inflation using the Producer Price Index for Offices of Lawyers (“PPI-OL”). 

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In this case the hours billed in calendar year 2021 were for work performed prior to publication of the 

2021 fee schedule. No rate increase was requested for this work and the question of appropriate hourly 

rates for 2021 is therefore not reached.
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expended. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), 

rev’d on other grounds and aff’d in relevant part ̧ 988 F.2d 131 (Fed. Cir. 1993). Special 

masters have previously reduced the fees paid to petitioners due to excessive and 

duplicative billing. See Ericzon v. Sec’y of Health & Human Servs., No. 10-103V, 2016 

WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award by 10 

percent due to excessive and duplicative billing); Raymo v. Sec’y of Health & Human 

Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016) (reduced 

overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016). Special 

masters can reduce a fee request sua sponte, without providing petitioners notice and

opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 102 Fed. Cl. 

719, 729 (2011). 

After reviewing the billing records, I find that counsel included entries that are 

duplicative and excessive due to attorneys and paralegals billing for reviewing the same 

orders and attending the same case meetings. Additionally, the billing records included 

entries for drafting and reviewing case memos, which appears to be intra-office 

communication, and in some instances, duplicative and excessive where the same 

memo is being drafted by an attorney and then reviewed by a paralegal. Such intraoffice communication billings will not be awarded. See Soto v. Sec’y of Health & 

Human Servs., No. 09-897V, 2011 WL 2269423, at *6 (Fed. Cl. Spec. Mstr. June 7, 

2011); Carcamo v. Sec’y of Health & Human Servs., No. 97-483V, 2011 WL 2413345, 

at *7 (Fed. Cl. Spec. Mstr. May 20, 2011). Since Meredith Daniels is the lead attorney 

in this case, handling the majority work, for duplicative and excessive entries, only hours 

billed by Ms. Daniels are awarded. These duplicative billing entries result in a reduction 

of $618.80 of the interim fee award.4 

b. Interim Attorneys’ Costs and Petitioner’s Costs

Attorneys’ costs must be reasonable as well. See Perreira v. Sec’y of Health & 

Human Servs., 27 Fed. Cl. 29, 34 (1992) (“The conjunction ‘and’ conjoins both 

‘attorneys’ fees’ and ‘other costs’ and the word ‘reasonable’ necessarily modifies both. 

Not only must any request for reimbursement of attorneys’ fees be reasonable, so also 

must any request for reimbursement of costs.”). 

In this case, petitioner seeks $25,443.75 in interim attorneys’ costs, including 

expenses incurred in obtaining medical records and retaining Dr. Latov to provide 

multiple expert reports. Dr. Latov requested an hourly rate of $500 for 48 hours of work, 

including reviewing medical records, reviewing medical literature, reviewing 

respondent’s expert’s reports, and preparing his reports. (ECF No. 49, pp. 42-43, 45.) 

4 There were many instances where attorneys and/or paralegals would bill for reviewing the same court 

orders, attending the same case meetings, and drafting and reviewing case memos. For example, there 

were excessive, duplicative, and intra-office communication billings on May 24, 2018, December 20, 

2018, January 2, 2019, January 22, 2019, May 6, 2019, July 9, 2019, July 11, 2019, July 19, 2019, July 

22, 2019, September 11, 2019, September 13, 2019, January 3, 2020, January 30, 2020, January 31, 

2020, March 5, 2020, June 11, 2020, June 9, 2020, August 20, 2020, November 9, 2020, and February 

18, 2021. This list is not exhaustive. 
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This hourly rate has been previously awarded by special masters for Dr. Latov’s work in 

the Vaccine Program. Lozano v. Sec’y of Health & Human Servs., No. 15-369V, 2017 

WL 6942528 (Fed. Cl. Spec. Mstr. Dec. 7, 2017); Floyd v. Sec’y of Health & Human 

Servs., No. 13-556V, 2017 WL 1344623 (Fed. Cl. Spec. Mstr. Mar. 2, 2017).

Additionally, petitioner incurred $10.42 in personal costs for copying and shipping 

medical records. (ECF No. 49, pp. 51-52; ECF No. 50.) I have reviewed the expense 

records and supporting documentation submitted with petitioner’s request, and I find 

that the requested interim attorneys’ costs are all reasonable. 

IV. Conclusion

In light of the above, petitioner’s motion for an award of interim attorneys’ fees 

and costs is hereby GRANTED and petitioner is awarded $55,972.87, representing 

$30,518.70 in interim attorneys’ fees, $25,443.75 in interim attorneys’ costs, and $10.42

in personal costs.

Accordingly, I award a total of $55,972.87 as follows:

• A lump sum of $10.42 in the form of a check payable to petitioner; 

and 

• A lump sum of $55,962.45 in the form of a check jointly payable to 

petitioner and her counsel, Ronald Craig Homer, Esq.

The clerk of the court shall enter judgment in accordance herewith.5

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

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.