In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-1556V

Filed: August 17, 2021

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

ROBIN COOLEY, * UNPUBLISHED

*

Petitioner, *

*

v. * Attorneys’ Fees and Costs

 *

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Mari C. Bush, Boulder, CO, for petitioner.

Adriana R. Teitel, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

On October 18, 2017, Robin Cooley (“petitioner”) filed a petition pursuant to the 

National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered a shoulder 

injury related to vaccine administration after receiving an influenza vaccination on December 13, 

2016. See Petition (ECF No. 1). On April 7, 2021, the parties filed a stipulation, which the 

undersigned adopted as her decision awarding compensation on the same day. (ECF No. 65).

On May 18, 2021, petitioner filed an application for final attorneys’ fees and costs. (“Fees 

App.”) (ECF No. 71). Petitioner requests total attorneys’ fees and costs in the amount of 

$52,724.13, representing $52,017.70 in attorneys’ fees and $706.43 in costs. Fees App. at 2. 

1 The undersigned intends to post this Decision on the United States Court of Federal Claims' website. 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, 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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.
2

Pursuant to General Order No. 9, petitioner states she has personally incurred costs associated 

with the prosecution of her petition in the amount of $500.00. (ECF No. 72). Respondent 

responded to the motion on June 1, 2021, stating “Respondent is satisfied the statutory

requirementsfor 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.” Response at 2 (ECF No. 73). Petitioner filed her reply on June 4, 2021, reiterating her 

belief that the requested attorneys’ fees and costs are reasonable.

This matter is now ripe for consideration.

I. Legal Framework

The Vaccine Act permits an award of “reasonable attorneys' fees” and “other costs.” § 

15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is 

automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not 

prevail on entitlement to receive a fee award as long as the petition was brought in “good faith” 

and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, because petitioner 

was awarded compensation pursuant to a stipulation, she is entitled to a final award of reasonable 

attorneys’ fees and costs.

The Federal Circuit has endorsed the use of the lodestar approach to determine what 

constitutes “reasonable attorneys' fees” and “other costs” under the Vaccine Act. Avera v. Sec'y of 

Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an initial 

estimate of a reasonable attorneys' fees” is calculated 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)). That product is then adjusted upward or downward 

based on other specific findings. Id.

Special masters have substantial discretion in awarding fees and may adjust a fee request 

sua sponte, apart from objections raised by respondent and without providing petitioners with 

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

201, 209 (2009). Special masters need not engage in a line-by-line analysis of petitioner's fee 

application when reducing fees. See Broekelschen v. Sec'y of Health & Human Servs., 102 Fed. 

Cl. 719, 729 (2011).

II. Discussion

A. Reasonable Hourly Rate

A “reasonable hourly rate” is 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 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for 

the District of Columbia” rather than “the rate in the geographic area of the practice of petitioner's 

attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) 

(citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorney's fees 

to be awarded at local hourly rates when “the bulk of the attorney's work is done outside the forum 
3

jurisdiction” and “there is a very significant difference” between the local hourly rate and forum 

hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec'y of Health & Human 

Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery 

Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

For cases in which forum rates apply, McCulloch provides the framework for determining 

the appropriate hourly rate range for attorneys' fees based upon the attorneys' experience. See

McCulloch v. Sec'y of Health & Human Servs., No. 09–293V, 2015 WL 5634323 (Fed. Cl. Spec. 

Mstr. Sept. 1, 2015). The Office of Special Masters has accepted the decision in McCulloch and 

has issued a Fee Schedule for subsequent years.3

Petitioner requests that her attorney, Ms. Mari Bush, be compensated at $410.00 per hour 

for all work performed in this case, from 2017-2021. The undersigned finds this to be a reasonable 

hourly rate for Ms. Bush’s work in 2020 and 2021. However, Ms. Bush has previously billed at 

and been awarded $400.00 per hour for her Vaccine Program work through 2019. See Tinoco v. 

Sec’y of Health & Human Servs., No., 2019 WL 6125117, at *2 (Fed. Cl. Spec. Mstr. Aug. 29, 

2019). The undersigned will therefore compensate Ms. Bush’s work in those years at the rates she 

has previously billed at, resulting in a reduction of $614.00.

Petitioner also requests paralegal rates of $150.00 per hour for all work performed in this 

case. The undersigned notes that this rate exceeds the maximum paralegal rate prescribed by the 

OSM Fee Schedule for 2017 as well was what Ms. Bush’s paralegals have previously been 

awarded. Id. (awarding paralegal Alyssa Kittel $125.00 per hour and paralegal Joyce Harris 

$145.00 per hour). The undersigned will also award these paralegal rates, resulting in a reduction 

of $64.50.

B. Hours Reasonably 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 ex rel. Saxton v. Sec'y of Health & 

Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 

434 (1983)). “Unreasonably duplicative or excessive billing” includes “an attorney billing for a 

single task on multiple occasions, multiple attorneys billing for a single task, attorneys billing 

excessively for intra office communications, attorneys billing excessive hours, [and] attorneys 

entering erroneous billing entries.” Raymo v. Sec'y of Health & Human Servs., 129 Fed. Cl. 691, 

703 (2016). While attorneys may be compensated for non-attorney-level work, the rate must be 

comparable to what would be paid for a paralegal or secretary. See O'Neill v. Sec'y of Health & 

Human Servs., No. 08–243V, 2015 WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). 

Clerical and secretarial tasks should not be billed at all, regardless of who performs them. See, e.g., 

McCulloch, 2015 WL 5634323, at *26. Hours spent traveling are ordinarily compensated at onehalf of the normal hourly attorney rate. See Scott v. Sec'y of Health & Human Servs., No. 08–756V, 

3 The 2015-2020 Fee Schedules can be accessed at http://www.cofc.uscourts.gov/node/2914. The hourly 

rates contained within the schedules are updated from the decision in McCulloch v. Sec’y of Health & 

Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
4

2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014) (collecting cases). And “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). Ultimately, it is “well within the Special Master's discretion 

to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work 

done.” Saxton, 3 F.3d at 1522. In exercising that discretion, special masters may reduce the number 

of hours submitted by a percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728–

29 (affirming the Special Master's reduction of attorney and paralegal hours); Guy v. Sec'y of 

Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same).

Upon review, the undersigned finds that a reduction must be made due to the vagueness of 

many of the billing entries. Although some of the entries for communication, such as phone calls 

and e-mails, contain a brief description of the subject of the communication, most do not. As the 

Federal Circuit has previously ruled, disclosure of the general subject matter of billing statements 

does not violate attorney-client privilege and billing entries for communication should contain 

some indication as to the nature and purpose of the communication. See Avgoustis v. Shinseki, 639 

F.3d 1340, 1344-45 (Fed. Cir. 2011).

Additionally, counsel has billed time at attorney rates for tasks which are more paralegal 

in nature, such as calendaring deadlines, scanning and mailing documents, and filing documents. 

These issues have previously been raised by other special masters concerning Ms. Bush’s billing 

practices. See Tinoco, 2019 WL 6125117 at *3-4.

In evaluating a motion for attorney's fees and costs, special masters “need not, and indeed 

should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 

180 L.Ed.2d 45 (2011). The undersigned shall therefore, in the exercise of her discretion in setting 

reasonable fees to be awarded, reduce the request for attorney fees by five percent. Petitioner is 

therefore awarded final attorneys’ fees of $48,842.25.

C. Reasonable 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 $706.43 in costs for acquiring medical records, the Court’s filing fee, postage, 

photocopies. The undersigned finds these costs reasonable and supported with adequate 

documentation. Accordingly, petitioner is entitled to the full amount of costs sought.

Pursuant to General Order No. 9, petitioner has also indicated she has personally incurred 

costs of $500.00 for a retainer paid to her counsel, which was offset against the aforementioned 

costs incurred. As those costs have been supported through documentation, petitioner’s costs shall 

also be reimbursed.

III. Conclusion
5

In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is 

GRANTED. The undersigned hereby awards the following:

1) a lump sum of $49,548.68, representing reimbursement for petitioner’s attorneys’ 

fees and costs, in the form of a check payable jointly to petitioner and Ms. Mari Bush; 

and

2) a lump sum of $500.00, representing reimbursement for petitioner’s costs, in the form 

of a check payable to petitioner.

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.4

IT IS SO ORDERED.

s/Mindy Michaels Roth

 Mindy Michaels Roth

Special Master

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

Vaccine Rule 11(a).