In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-878V

(not to be published)

* * * * * * * * * * * * * * * * * * * * * * * * * Chief Special Master Corcoran

*

DOUGLAS KELLY, *

* Filed: July 27, 2022

Petitioner, *

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School,

Washington, DC, for Petitioner.

Lara A. Englund, U.S. Dep’t of Justice, Washington, DC, for Respondent.

DECISION GRANTING ATTORNEY’S FEES AND COSTS1

On July 25, 2016, Douglas Kelly filed a petition seeking compensation under the National 

Vaccine Injury Compensation Program (“Vaccine Program”), 2 alleging that an influenza 

vaccine he received had aggravated an underlying condition, leading to unilateral sensorineural 

hearing loss (“SNHL”). 

1 Although I have not formally designated this Decision for publication, it will nevertheless be posted on the United 

States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). 

As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain 

kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which 

to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial 

in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which 

would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will 

be available to the public. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 

100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012) (hereinafter “Vaccine Act” or “the Act”). 

All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.
The matter was reassigned to me in early 2021, after the special master formerly presiding 

over it determined that the claim could be best resolved via ruling on the record. I determined 

Petitioner had not met his burden in a Decision on October 18, 2021. ECF No. 66 (“Decision”). 

Petitioner filed a Motion for Review of my Decision on November 17, 2021 (ECF No. 68), but 

it was denied. Judge Vaccine Order/Opinion, dated Mar. 13, 2022 (ECF No. 71). 

Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion, 

dated July 12, 2022 (ECF No. 76) (“Final Fees Mot.”). Petitioner requests a total of $96,624.07,

3

reflecting $68,094.15 in all fees incurred on this matter since its inception for the services of Ms. 

Renee Gentry and student-attorneys at the George Washington University Law School Vaccine 

Injury Litigation Clinic, plus $23,803.58 in litigation costs, with an additional $4,726.34 in costs 

incurred by Petitioner directly. Final Fees Mot. at 1–2. Respondent reacted to the final fees request 

on July 21, 2022. Response, dated July 21, 2022 (ECF No. 77) (“Response”). Respondent defers 

to the Court on whether the statutory requirements were met, and otherwise leaves the calculation 

of amounts to be awarded to my discretion. Response at 2–3.

For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and 

costs in the total amount of $96,695.57.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Although the Vaccine Act only guarantees a fees award to successful petitioners, a special 

master may also award fees and costs in an unsuccessful case if: (1) the “petition was brought in 

good faith”; and (2) “there was a reasonable basis for the claim for which the petition was brought.” 

Section 15(e)(1). I have in prior decisions set forth at length the criteria to be applied when 

determining if a claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Sterling 

v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443, at *4 (Fed. Cl. Spec. Mstr. Jan. 

3, 2020). Importantly, establishing reasonable basis does not automatically entitle an unsuccessful 

claimant to fees, but is instead a threshold obligation; fees can still thereafter be limited, if 

unreasonable, or even denied entirely.

A claim’s reasonable basis4 must be demonstrated through some objective evidentiary 

showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) 

3 Petitioner’s motion inadvertently requested a total fees and costs award of $921,897.73, but the correct amount is

$91,897.73.

4 Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable to that fees 

prong.
(citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This 

objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may 

bulwark good faith). Simmons, 875 F.3d at 635. In addition, reasonable basis inquiries are not 

static—they evaluate not only what was known at the time the petition was filed, but also take into 

account what is learned about the evidentiary support for the claim as the matter progresses.

Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the 

finding that a reasonable basis for petitioners’ claims ceased to exist once they had reviewed their 

expert's opinion, which consisted entirely of unsupported speculation). As a result, a claim can 

“lose” reasonable basis over time.

The standard for finding the existence of reasonable basis is lesser (and thus inherently 

easier to satisfy) than the preponderant standard applied when assessing entitlement, as cases that 

fail can still have sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. 

Servs., 144 Fed. Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable 

basis is a standard that petitioners, at least generally, meet by submitting evidence.” Chuisano v. 

Sec’y of Health & Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) 

(affirming special master). The factual basis and medical support for the claim is among the 

evidence that should be considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 

378 (Fed. Cl. 2017). Under the Vaccine Act, special masters have “maximum discretion” in 

applying the reasonable basis standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. 

Cl. 401, 401–02 (Fed. Cl. 2012).5

Petitioner’s claim was ultimately unsuccessful despite appeal. However, I observed in my 

Decision that causation theories involving SNHL were not inherently or consistently baseless. 

Decision at 31–32. Moreover, the core factual elements of this claim were objectively-established, 

and Petitioner supported his claim with the opinion of a reputable expert. I thus find the claim 

possessed sufficient reasonable basis to satisfy this admittedly-minimal threshold for fees—and 

see no other reason for denying a fee award in this case.

II. Calculation of Fees

Determining the appropriate amount of the fees award is a two-part process. The first part 

involves application of the lodestar method— “multiplying the number of hours reasonably 

expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 

515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

The second part involves adjusting the lodestar calculation up or down to take relevant factors into 

consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in 

5 See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they 

would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is 

consistent with the Vaccine Act as a whole). 
most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 

429–37 (1983). 

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the 

proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., 

for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there 

is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348 

(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. 

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges 

for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine 

Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at 

*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Petitioner requests the following rates for his attorneys, based on the years work was 

performed:

Attorney 2015 2016 2017 2018 2019 2020 2021 2022

Ms. Renee 

Gentry

$400.00 $415.00 $424.00 - $445.00 $464.00 $489.00 $504.00

Mr. Clifford 

Shoemaker

$415.00 $430.00 $440.00 $450.00 $460.00 - - -

StudentAttorneys- - - $145.00 $145.00 $150.00 $150.00 $150.00

ECF No. 76-1 at 29–48. 

Ms. Gentry’s practice in Washington, DC—a jurisdiction that has been deemed “in forum.” 

Accordingly, she should be paid forum rates as established in McCulloch. See America v. Sec’y of 

Health & Hum. Servs., No. 17-542V, 2022 WL 2441325, at *3 (Fed. Cl. Spec. Mstr. June 7, 2022). 

The rates requested for Ms. Gentry, her associated counsel, and her student-attorneys are also 

consistent with what they have been previously awarded, and are in accordance with the Office of 

Special Masters’ fee schedule.6 Dinh v. Sec’y of Health & Hum. Servs., No. 16-171V, 2022 WL 

2117973, at *3 (Fed. Cl. Spec. Mstr. May 17, 2022); Simkiss v. Sec’y of Health & Hum. Servs., 

No. 15-1127V, 2018 WL 1834197, at *2 (Fed Cl. Spec. Mstr. Feb. 22, 2018). I thus find no cause 

to reduce them in this instance. And I deem the time devoted to the matter to be reasonable. I will 

6 OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visitedJuly 25, 

2022).
therefore award all fees requested (with only an upward adjustment to Ms. Gentry’s 2019 hourly 

rate)7 granting an additional $71.50, for a total of $68,165.65 in attorney’s fees.

III. Calculation of Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must 

also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. 

Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). 

Reasonable costs include the costs of obtaining medical records and expert time incurred while 

working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at 

*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as 

by not providing appropriate documentation to explain the basis for a particular cost, special 

masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health 

& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005). 

Petitioner seeks $23,803.58 in outstanding costs incurred by his attorneys, and $4,726.34 

for costs he specifically incurred out-of-pocket. The litigation-related costs included fees from the 

Petitioner’s expert, Dr. Carlo Tornatore, and medical record retrieval costs. ECF No. 76-1 at 49–

52. Dr. Tornatore devoted 59.5 hours of work to the matter, at a $400.00 hourly rate. Id. at 49–50.

These costs were all reasonable and will be awarded.

Petitioner’s specific costs include the filing fee, an MRI that was required in the course of 

the litigation, plus a number of travel-related expenses. ECF No. 76-1 at 2–28. The filing fee is a 

common cost that is properly reimbursed, and the MRI does seem to have been necessary for the 

claim’s resolution, meaning that cost should also be paid. I have some pause, however, regarding 

personal costs incurred by the Petitioner, which appear to reflect travel to Washington, D.C. to 

meet with counsel. As a general rule, a petitioner’s travel for instances not related to a hearing or 

comparable proceeding should not be awarded (in contrast to travel necessary for counsel to visit 

a client). But it appears herein that efficiencies were obtained by having the Petitioner come to the 

location of counsel, rather than the more usual vice-versa arrangement.8 And Respondent has not 

specifically objected to this element of the fees request. I will therefore permit recovery of these 

costs—but admonish counsel in the future to seek the approval of a special master in advance 

before allowing a petitioner to incur such costs.

7 The only adjustment is actually to counsel’s benefit. Petitioner’s fee request used both rates of $440.00 and $445.00 

per hour for Ms. Gentry in 2019. But because she has previously been awarded the higher amount for that year, I will 

apply it to those instances where she billed the lesser sum of $440.00 per hour.

8 The fact that this case involved work by a number of student attorneys at the GW Law School Vaccine Injury 

Litigation Clinic may have something to do with the need for Petitioner to come to see his counsel.
CONCLUSION

Based on the foregoing, and in the exercise of the discretion afforded to me in determining 

the propriety of a final fees award, I GRANT Petitioner’s Motion for Attorney’s Fees and Costs 

in its entirety and award a total of $96,695.57 reflecting $68,165.65 in attorney’s fees, $23,803.58

in attorney’s costs, and $4,726.34 in Petitioner’s costs. This shall be split between two checks: the 

first in the form of a check made jointly payable to Petitioner and his attorney, Ms. Renee Gentry,

in the amount of $91,969.23, and the second check shall be paid directly to Petitioner in the amount 

of $4,726.34.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the 

Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.9

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices 

renouncing their right to seek review.