In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: June 11, 2020

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

BRITTON MILLER, * No. 17-297V

* Special Master Sanders

Petitioner, *

* UNPUBLISHED

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner;

Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On March 3, 2017, Britton Miller (“Petitioner”) filed a petition for compensation pursuant 

to the National Vaccine Injury Compensation Program.242 U.S.C. §300aa-10 et seq. (2012). 

Petitioner alleged that he developed a shoulder injury related to vaccine administration (“SIRVA”)

as a result of the influenza vaccine he received on October 25, 2015. On August 6, 2019, the parties 

filed a stipulation for award, which the undersigned adopted as her decision awarding 

compensation on August 12, 2019. ECF No. 51.

 

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 Because this unpublished ruling contains a reasoned explanation for the action in this case, 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. Hereinafter, for ease 

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012).
On February 10, 2020, Petitioner filed a motion for attorneys’ fees and costs. ECF No. 56

(“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $52,316.03, 

representing $45,943.40 in attorneys’ fees and $6,372.63 in attorneys’ costs. Fees App. at 1.

Pursuant to General Order No. 9, Petitioner has indicated that he has not incurred any out of pocket

costs. Id. Respondent responded to the motion on February 11, 2020, stating that Respondent “is 

satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this 

case” and asking the Court to “exercise its discretion and determine a reasonable award for 

attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 57. Petitioner filed a reply on February 

13, 2020, reiterating his belief that the requested attorneys’ fees and costs are reasonable.

This matter is now ripe for consideration. 

I. Reasonable Attorneys’ Fees and Costs 

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The 

Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and 

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 

Cir. 2008). This is a two-step process. Id. First, a 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.

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). Such applications, however, 

should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

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

relevant community. See Blum, 465 U.S. at 895. 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. Petitioners bear the burden of providing adequate evidence to prove 

that the requested hourly rate is reasonable. Id.

a. Hourly Rate 

The decision in McCulloch provides a 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), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee

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

3

Petitioner requests the following rates for his counsel, Ms. Leah Durant: $350.00 per hour 

for work performed in 2016, $365.00 per hour for work performed in 2017, $377.00 per hour for 

work performed in 2018, and $380.00 per hour for work performed in 2019. These rates are 

consistent with what Mr. Durant has previously been awarded for her Vaccine Program work, and 

the undersigned finds them to be reasonable for work in the instant case.

b. Reasonable Number of Hours 

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)). 

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

provided sufficiently detailed descriptions for the tasks performed, and upon review, the 

undersigned does not find any of the billing entries to be unreasonable. Accordingly, Petitioner is 

entitled to final attorneys’ fees in the amount of $45,943.40. 

c. Attorney 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 $6,372.63 in attorneys’ costs, comprised of acquiring medical records, postage, the 

Court’s filing fee, and work performed by Petitioner’s expert Dr. Clifford Colwell, Jr. Fees App. 

Ex. 2 at 2. Petitioner has provided adequate documentation of all these expenses and all appear 

reasonable in the undersigned’s experience.4 Accordingly, the requested attorneys’ costs shall be 

awarded in full.

II. Conclusion 

In accordance with the Vaccine Act, 42 U.S.C. §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 is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to 

compensate Petitioner and his counsel as follows: 

Attorneys’ Fees Requested $45,943.40

(Reduction to Fees) -

 

3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates 

contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.

4 Concerning the work of Dr. Colwell, the undersigned finds the total amount of attorneys’ costs 

attributable to his work is reasonable in light of the work performed in the instant case. The undersigned 

is not making a determination as to the reasonableness of his billed hourly rate at this time.
Total Attorneys’ Fees Awarded $45,943.40

Attorneys’ Costs Requested $6,372.63

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $6,372.63

Total Attorneys’ Fees and Costs $52,316.03

Accordingly, the undersigned awards a lump sum in the amount of $52,316.03, 

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

payable to Petitioner and his attorney, Ms. Leah Durant.

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.5

IT IS SO ORDERED.

s/Herbrina D. Sanders

Herbrina D. Sanders 

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.