In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: June 23, 2020

* * * * * * * * * * * * * * UNPUBLISHED

GARY FOSTER, *

*

Petitioner, * No. 17-1502V

* Special Master Oler

v. *

 * Attorneys’ Fees and Costs

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

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

Colleen C. Hartley, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On October 12, 2017, Gary Foster (“Petitioner”) filed a petition for compensation pursuant 

to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 (2012). 

Petitioner alleged that he suffered right shoulder injuries, including Parsonage Turner Syndrome,

as a result of receiving an influenza (“flu”) vaccination on or about August 31, 2016. See Petition, 

ECF No. 1. On January 21, 2020, the parties filed a stipulation, which the undersigned adopted as 

her Decision awarding compensation on January 30, 2020. ECF No. 51.

On March 13, 2020, Petitioner filed an application for final attorneys’ fees and costs. ECF 

No. 56 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of 

$10,693.82, representing $9,681.10 in attorneys’ fees and $1,012.72 in attorneys’ costs. Fees App. 

at 2. Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs related 

 

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 Because this unpublished ruling contains a reasoned explanation for the action in this case, 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.
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to this litigation. Id. Respondent responded to the motion on March 13, 2020, stating that 

“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are 

met in this case” and requesting that the undersigned “exercise her discretion and determine a 

reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 57. Petitioner did 

not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

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, they are eligible so long as 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). Here, because Petitioner was awarded compensation pursuant 

to a stipulation, he is entitled to an award of final reasonable attorneys’ fees and costs.

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).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). 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. The petitioner bears the burden of providing 

adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

Petitioner requests the following rates of compensation for his attorney, Ms. Shealene 

Mancuso: $225.00 per hour for work performed in 2017, $233.00 per hour for work performed in 

2018, and $250.00 per hour for work performed in 2019. These rates are consistent with what Ms. 

Mancuso has previously been awarded for her Vaccine Program work, and the undersigned finds 

them to be reasonable herein.

b. Reasonable Hours Expended

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)). Additionally, it is well-established that billing for 
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administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 

18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL 

2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

Upon review, the undersigned finds the overall hours billed to be largely reasonable. 

However, a small amount must be reduced for excessive time billed by counsel to direct paralegal 

activity. Such entries typically concerned directing the firm paralegals to draft pro forma filings. 

In the undersigned’s experience, it would not take an attorney six minutes to tell a paralegal to 

draft a status report, and this billed timed leads to a situation where the time spent preparing such 

filings is excessive. Upon review, an appropriate reduction for this time is $400.00. Accordingly, 

Petitioner is awarded final attorneys’ fees of $9,281.10.

c. Attorneys’ 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 $1,012.72 in attorneys’ costs. Fees App. at 14. This amount is comprised of acquiring 

medical records, postage, and the Court’s filing fee. All of these costs are typical of Vaccine 

Program litigation and are reasonable in the undersigned’s experience. Petitioner has provided 

adequate documentation supporting the request. Accordingly, the requested attorneys’ costs are 

reasonable and shall be reimbursed in full.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-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. The undersigned finds that it is 

reasonable to compensate Petitioner and his counsel as follows:

Attorneys’ Fees Requested $9,681.10

(Reduction to Fees) - ($400.00)

Total Attorneys’ Fees Awarded $9,281.10

Attorneys’ Costs Requested $1,012.72

(Reduction to Costs) -

Total Attorneys’ Costs Awarded $1,012.72

Total Amount Awarded $10,293.82

Accordingly, the undersigned awards a lump sum in the amount of $10,293.82, 

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

payable jointly to Petitioner and Petitioner’s counsel of record, Ms. Shealene Mancuso.
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In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the 

court shall enter judgment in accordance herewith.3

IT IS SO ORDERED.

s/ Katherine E. Oler

 Katherine E. Oler

Special Master

 

3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. 

Vaccine Rule 11(a).