In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

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

SHARON THOMAS, * 

* No. 14-966V 

 Petitioner, * Special Master Christian J. Moran 

 * 

v. * 

 * Filed: October 5, 2018 

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, * Attorneys’ fees & costs.

 * 

 Respondent. * 

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

Scott W. Rooney, Nemes Rooney, P.C., Farmington Hills, MI, for petitioner; 

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

respondent. 

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

On July 19, 2018, Ms. Thomas moved for interim fees, requesting 

$22,563.50 in fees and $2,523.40 in costs. These fees and costs covered the period 

ending on the date of the filing of the motion. 

Four days later, the Secretary filed his response to petitioners’ motion. In 

his response, the Secretary did not object to petitioners’ request. Resp’t’s Resp. at 

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

whether the statutory requirements for an award of attorneys’ fees and costs 

(including the reasonable basis requirement) are met in this case.” Id. Similarly, 

the Secretary requested that the undersigned exercise his discretion in determining 

 

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. 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 

what constituted a reasonable fee award if a fee award was deemed appropriate. 

Id. at 3. 

This matter is now ripe for adjudication. 

* * * 

I. Eligibility for an Interim Award 

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). However, the 

Federal Circuit also noted that interim fees “are particularly appropriate in cases 

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

language has been applied in the Court of Federal Claims to mean that “some 

special showing is necessary to warrant interim fees . . . .” McKellar v. Sec'y of 

Health & Human Servs., 101 Fed. Cl. 297, 300 (2011). These are “including but 

not limited to the delineated factors of protracted proceedings, costly experts, or 

undue hardship.” 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. 

Though the Federal Circuit has not provided specificity with regards to what 

constitutes a “protracted proceeding” or “undue hardship,” the undersigned finds 

that this case is appropriate for an interim award. Ms. Thomas’ case was filed four 

years ago this week and throughout that time Mr. Rooney has been working 

without compensation. Furthermore, based on the procedural posture of this case, 

it is likely that Mr. Rooney may need to procure an expert report to advance Ms. 

Thomas’ position. Requiring Mr. Rooney to pay for this report out-of-pocket all 

the while he has not been compensated for over four years of work on this same 

case presents, in the undersigned’s estimation, an undue hardship for the petitioner. 

Furthermore, given the posture of this case, it is not clear when Ms. Thomas’ claim 

may be adjudicated and thus she faces much more than a “short delay” until she 

would be eligible for a final fees award. For these reasons, the undersigned finds 

an interim award appropriate. 

II. Attorneys’ Fees

The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 
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process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 

Cir. 2008). First, the 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. The 

undersigned finds that a downward departure from the lodestar total is not called 

for in this case.

A. Reasonable Hourly Rate 

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

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

HumanServs., No. 13-737V, 2015 WL 9594109, at *2 (Fed. Cl. Spec. Mstr. Dec. 

10,2015) (“special masters are not obligated to evaluate an attorney’s billing 

records on a line-by-line basis in making the reasonableness determination . . . and 

certainly need not do so when Respondent has not attempted to highlight any 

specific alleged inefficiencies”). 

There appears to be some inconsistency in Mr. Rooney’s hourly rates. In the 

motion for fees, petitioner states that Mr. Rooney “was retained to represent 

Sharon Thomas throughout the course of this litigation at the rate of $350.00 per 

hour.” Pet’r’s Fees Mot. at 1. However, in a subsequent order, the undersigned 

requested that petitioner elucidate the basis for Mr. Rooney’s hourly rate, noting 

that a review of other fees decisions concerning Mr. Rooney indicated that he 

billed at an hourly rate of $300 for most of the time period covered by Ms. 

Thomas’ motion. See order, issued Aug. 8, 2018, at 1. In a subsequent status 

report, petitioner stated that Mr. Rooney “has begun requesting the fee of $350 per 

hour based upon the 2017 Economics of Law Practice Report from the State Bar of 

Michigan.” Pet’r’s Status Rep., filed Aug. 8, 2018, at 1. Thus, it appears that Mr. 

Rooney retroactively increased his hourly rate at some point during the pendency 

of Ms. Thomas’ case.

The undersigned has reviewed the supporting documentation provided by 

Mr. Rooney and in consideration of that evidence as well as Mr. Rooney’s 

experience—in the Vaccine Program and more generally—finds an hourly rate of 

$350 reasonable for Mr. Rooney’s present work. However, the undersigned does 

not find it reasonable to retroactively set Mr. Rooney’s rate at $350 per hour for 
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work done before 2018. Instead, consistent with other special masters’ analyses, 

the undersigned finds a rate of $300 per hour for Mr. Rooney’s work before 2018 

to be reasonable. See, e.g., Voors v. Sec'y of Health & Human Servs., No. 17-

024V, 2017 WL 6892228, at *1 (Fed. Cl. Spec. Mstr. Nov. 15, 2017). To adjust 

for this finding, the undersigned reduces Ms. Thomas’ fees award by 10%.

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. 

On the whole, the number of hours billed by Mr. Rooney and his paralegal 

appear reasonable for a case of this complexity. The entries from the attorneys and 

paralegals tend to describe the activities with sufficient detail that the 

reasonableness of the work may be assessed. There are instances where the record 

simply states “filing,” “drafting,” or “medical research.” In these cases Mr. 

Rooney would be advised to include additional information in future fees motions 

and this decision should constitute a warning for Mr. Rooney to be more careful 

going forward. However, in those few instances where Mr. Rooney does not 

provide an optimal amount of detail, the number of hours billed tends to be 

nominal and the undersigned is not concerned that the entries reflect unreasonable 

billing. 

III. Costs 

In addition to seeking attorneys’ fees, Ms. Thomas seeks an award of costs 

totaling $2,523.40. 

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). Ms. Thomas’s request for costs 

includes typical items such as the filing fee, costs associated with obtaining 

medical records, and copying costs. Ms. Thomas’ costs are reasonable and are 

awarded in full. 
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* * * 

Accordingly, petitioner is awarded: 

A lump sum of $22,830.55 in the form of a check made payable to 

petitioner and petitioner’s attorney, Scott Rooney. 

These amounts represents reimbursement 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. 

 s/Christian J. Moran 

 Christian J. Moran 

 Special Master