                         In the United States Court of Federal Claims 
                                                          OFFICE OF SPECIAL MASTERS
                                                                   No. 15-485V
                                                               (Not to be Published)

*************************
                              *
ROSA ALLICOCK,                *                                               Filed: May 26, 2016
on behalf of her minor child, *
M.A.,                         *
                              *                                               Petitioner’s Motion for Attorney’s
               Petitioner,    *                                               Fees and Costs; Reasonable bBasis;
                              *                                               Statute of Limitations;
v.                            *                                               Developmental Regression; Autism
                              *                                               Spectrum Disorder; Significant
SECRETARY OF HEALTH           *                                               Aggravation
AND HUMAN SERVICES,           *
                              *
               Respondent.    *
                              *
*************************

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner.

Traci R. Patton, U.S. Dep’t of Justice, Washington, DC, for Respondent.

                                             DECISION GRANTING ATTORNEY’S FEES1

      On May 12, 2015, Rosa Allicock filed a petition seeking compensation on behalf of her
minor child, M.A., under the National Vaccine Injury Compensation Program (the “Vaccine
Program”),2 alleging that vaccinations that M.A. received on May 14, 2012, and July 17, 2012,

                                                            
1
  Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published 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. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act. 
respectively, significantly aggravated his global developmental delays. By October of that same
year, however, Petitioner had determined that she could not succeed on her claim, and I granted
her request to dismiss the petition by decision dated November 23, 2015 (ECF No. 19).

        Ms. Allicock has now requested an award of attorney’s fees and costs in the combined
amount of $19,881.35. App. for Attorney’s Fees & Costs, dated Mar. 15, 2016 (ECF No. 24)
(“Fees App.”). Respondent opposes the request, arguing that the claim lacks reasonable basis. For
the reasons stated below, I grant in part Petitioner’s request, awarding her $20,411.28 in fees and
costs.

                             Procedural History and Fees Request

        As noted above, the case was filed in May 2015. Pet. at 1. The petition expressly stated
that M.A. had shown signs of developmental problems after certain childhood vaccinations
received at the end of December 2011, but alleged that those problems worsened after the May
2012 vaccinations. Id. at 19. Petitioner also maintained that later that same year, some of M.A.’s
treaters diagnosed him as having experienced an encephalopathy some time after the May and July
2012 vaccinations. Consistent with these factual allegations, Petitioner specifically claimed that
M.A.’s developmental problems had been significantly aggravated by the May and July 2012
vaccinations. Id. at 27.

        The history of counsel’s representation of Ms. Allicock bears on the present fees request.
Four months prior to the petition’s filing, Andrew D. Downing, Esq., and other attorneys and
paralegals at the law firm of Van Cott & Talamante, PLLC were contacted by Ms. Allicock, and
immediately began to work on the case. See generally Billing Records, attached as Ex. A to Fee
App. (ECF No. 24-1). Thereafter, between January 2015 and the date of the petition’s filing in
May, Mr. Downing billed 7.5 hours to the matter, once medical records were obtained in February
2015. Ex. A at 1-2. Justin Redman, an associate working at Mr. Downing’s firm, billed 11.8 hours
to the matter in the same timeframe (Ex. A at 4-6), while two paralegals – Bob Cain and Danielle
Avery – collectively performed 17.5 hours of work. Id. at 7-10 and 11-15. Of particular interest,
given the present motion, are entries in the time records referencing discussions in April 2015
between Mr. Downing and Ms. Allicock regarding “statute of limitations” concerns and her
allegations that M.A.’s condition worsened after the May 2012 vaccinations. Id. at 2.

       After the case’s initiation, Petitioner filed a large set of medical records relevant to her
claim (Notice, dated May 21, 2015 (ECF No. 5)), and then a second set in June, followed by a
statement of completion. See June 23, 2015 Statement of Completion (ECF No. 9). I then set
October 6, 2015, as the deadline for the Rule 4(c) Report, and Respondent complied with my order.
See Rule 4(c) Report, dated Oct. 6, 2015 (ECF No. 15).



                                                2 
 
        In her Rule 4(c) Report, Respondent questioned whether Ms. Allicock could establish
significant aggravation of M.A.’s condition, observing that his developmental delay diagnosis was
“well established” prior to the May 2012 vaccinations. ECF No. 15 at 12. She also noted that the
record did not otherwise offer support (such as a treater’s opinion) for the allegation that M.A.’s
condition had worsened as a result of vaccines he received (although she acknowledged that
Petitioner had at least alleged hearing this from one treater, Dr. Anna Floet). Id. at 13; see also
Statement of Rosa Allicock, dated May 5, 2015, attached as Ex. 1 to Pet. (ECF No. 1-1). Because
of the lack of record support, in a footnote Respondent raised the possibility that the claim lacked
a reasonable basis, but she did not elaborate on the point. Id. at 12 n.5.

       After review of the Rule 4(c) Report, I scheduled a status conference with the parties for
October 16, 2015. At that time, I stated my initial view that the case’s reasonable basis seemed in
doubt, echoing Respondent’s factual points. See Scheduling Order, dated October 19, 2015 (ECF
No. 16). Petitioner’s counsel signaled his awareness of the case’s weaknesses and asked for an
opportunity to consult with Ms. Allicock about possible next steps.

        Not long after, on November 18, 2015, Petitioner filed an unopposed motion requesting a
decision dismissing the case. ECF No. 18. In it, Petitioner stated that “[a]lthough [she] feels very
strongly about what she witnessed with M.A., an investigation of the facts and science supporting
the case as medical records have been receive has demonstrated to Petitioner that she will likely
be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. at 1. She also
referenced the fact that the purportedly slow delivery of documents relevant to her claim had,
coupled with a looming limitations period for filing the case, forced her to act despite concerns
about the claim’s strength. Id. Based on my own examination of the record, I concluded that there
was insufficient evidence that M.A. suffered a “Table Injury.” Nor had she offered a medical
expert’s opinion or any other persuasive evidence indicating that the alleged injury that M.A.
experienced could have been caused or significantly aggravated by the vaccinations that he
received on May 14, 2012, and July 17, 2012. I therefore granted the motion and dismissed the
case by decision dated November 23, 2015. See ECF No. 23.

         Ms. Allicock filed the present fees petition in March of this year. See generally Fees App.
In it, she requests an award of $18,141.50 in fees reflecting the work performed on the case by Mr.
Downing (24.9 hours at $350 per hour), plus two associates (Mr. Redman (15.8 hours) and
Courtney Van Cott (18.9)), both billing at the rate of $195 per hour. Exs. A-C, F, and G to Fees
App. She also asks that two paralegals (Mr. Cain and Ms. Avery) be reimbursed at the rate of $100
per hour for a combined total of 26.6 hours of work. Id. at Exs. H-I. Finally, she requests
reimbursement of $1,739.85 in other costs, which include copying, filing costs, and medical
records charges, among other things. Ex. A to Fees App. at 18-20.




                                                 3 
 
        Respondent opposed the fees application on March 30, 2016. ECF No. 25 (“Opp.”). She
vigorously contested whether the action possessed reasonable basis at the time of its filing, noting
that M.A.’s developmental problems were well-documented in the medical records as having
begun before May 2012. Opp. at 10, 17. Otherwise, there was no evidence in the medical record
of a post-May 2012 vaccine worsening beyond the claims of the Petitioner herself. Id. at 17.
Respondent noted that, as reflected by the billing records, Petitioner’s counsel had several months
from the date the case would be time-barred to complete review of medical records, and thus the
pressure of the looming claim cut-off date was not overwhelming. Id. at 18. While Respondent
acknowledged that certain records were in fact not in Petitioner’s possession, she and her counsel
had enough to be plainly on notice of the problems with the claim. Respondent’s argument also
distinguished the reasonability of filing the case to preserve the statute of limitations from the
evidence establishing the claim’s reasonable basis. Id. at 19.

         Petitioner replied in support of her fees application on April 8, 2016 (ECF No. 26)
(“Reply”). She stressed the importance of considering the pending statute of limitations herein
when evaluating her claim’s reasonable basis, and that Program decisions more often than not were
lenient in evaluating reasonable basis for cases that needed to be filed shortly before a looming
cut-off date. Reply at 2-4. Although she noted that “counsel had four months to conduct a pre-
filing inquiry,” she nevertheless argued that she did not have sufficient medical records as of the
date of filing to fully evaluate the claim’s substance (and in particular, whether M.A. had
experienced worsening of his developmental problems after May 2012). Id. at 3. She otherwise
distinguished cases cited by Respondent as factually inapposite. Id. at 5. The matter is now ripe
for resolution.3

                                                               ANALYSIS

I.            Legal Standards for Recovery of Fees in Unsuccessful Cases

        Vaccine Program petitioners who receive compensation for their injuries are by statute
entitled to an award of “reasonable” attorney’s fees and costs. Section 15(e)(1). It is for the special
master to evaluate and decide whether the fees sought are in fact reasonable. Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). To this
end, special masters may, in the exercise of their discretion, reduce hours sua sponte, apart from
objections raised by Respondent and without providing a petitioner notice and opportunity to
respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (2009); Perreira,

                                                            
3
   After filing the reply, Petitioner filed a “supplement” to her original application. See Supplement, dated April 12,
2016 (ECF No. 27). The Supplement requests an additional $3,741 in attorney’s fees (3 hours of Mr. Downing’s time
plus 13.8 hours of Ms. Van Cott’s time) incurred in preparing the fees request and Reply in March and April of this
year, plus $407.08 in additional costs (the largest component of which is a Westlaw research charge). See Ex. K to
Supplement. Respondent did not file anything in reaction or opposition. As set forth below, I apply the same reasoning
about reasonable basis discussed with respect to Petitioner’s primary fees request to these additional sums requested.

                                                                4 
 
27 Fed. Cl. at 34 (special master has “wide discretion in determining the reasonableness” of
attorney’s fees and costs).

        Even unsuccessful petitioners, however, may be awarded reasonable fees and costs if, in
the special master’s exercise of discretion, such an award is appropriate (and, as in the case of
successful claims, if the requested fees and costs are “reasonable”). The primary factors to be
considered under such circumstances are whether (a) the petition was brought in good faith; and
(b) there was a reasonable basis for the claim for which the petition was brought. Section 15(e)(1);
Silva v. Sec’y of Health & Human Servs., 108 Fed. Cl. 401, 405 (2012).

        Determining whether a petition was filed in good faith is a subjective inquiry, and can be
established as long as the petitioner demonstrates an honest belief that she has suffered a
compensable vaccine injury. See Di Roma v. Sec’y of Health & Human Servs., No. 90–3277V,
1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993); see also Grice v. Sec’y of Health &
Human Servs., 36 Fed. Cl. 114, 121 (1996) (petitioner is entitled to presumption of good faith).4
This element is therefore the more easily established of the two. Austin v. Sec’y of Health & Human
Servs., No. 10-362V, 2013 WL 659574, at *7 (Fed. Cl. Spec. Mstr. Jan. 31, 2013) (“[d]ue to its
subjective nature, the standard for good faith is very low”). Respondent has not questioned
Petitioner’s good faith in filing the case, and I do not find any grounds in the record to conclude
the case was not so filed.


II.           Reasonable Basis

        Determining a claim’s reasonable basis involves application of objective criteria. See
McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 303-04 (2011) (citing Perreira v.
Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994)) (“[t]he petitioner must
affirmatively establish a reasonable basis to recover attorneys’ fees and costs.”)). An assessment
of reasonable basis “look[s] not at the likelihood of success but more to the feasibility of the claim.”
Di Roma, 1993 WL 496981, at *1.

        There is no explicit instruction from the Federal Circuit setting the precise evidentiary
burden imposed on a petitioner attempting to establish reasonable basis. As stated in Chuisano v.
Sec’y of Health & Human Servs., No. 7-452V, 2013 WL 6234660, at *12 (Fed. Cl. Spec. Mstr.
Oct. 25, 2013), mot. for review den’d, 116 Fed. Cl. 276 (2014), “[r]easonable basis is a standard
that petitioners meet by submitting evidence.” This is simply an alternative way to characterize the
overarching fact that an unsuccessful petitioner has a burden of proof to satisfy before a fee award
                                                            
4
  Decisions of special masters and judges of the Court of Federal Claims constitute persuasive, but not binding
authority. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 625, 630 (1998). By contrast, Federal Circuit
decisions are binding on special masters. Guillory v. Sec’y of Health & Human Servs., 59 Fed. Cl. 121, 124 (2003),
aff’d, 104 Fed. App’x 712 (Fed. Cir. 2004).

                                                               5 
 
is appropriately granted. McKellar, 101 Fed. Cl. at 304. That burden can be carried only by
submission of probative, persuasive evidence – and the evidence a petitioner possesses regarding
her claim bears on the substantive basis for the claim. But the analysis should ultimately be based
on the “totality of the circumstances,” taking into account all facts relevant to a given case, in
addition to the evidence actually supporting the claim itself. Chuisano, 116 Fed. Cl. at 286, (citing
McKellar, 101 Fed. Cl. at 303).

        As to the kinds of proof that might be employed in meeting this burden, other special
masters have looked to whether a claim has support in the contemporaneous medical records, or
in a medical opinion, or if the petitioner can demonstrate at least that “fundamental inquiries” were
made in an effort to identify evidentiary support for the claim. Melbourne v. Sec’y of Health &
Human Servs., No. 99-694V, 2007 WL 2020084, at *6 (Fed. Cl. Spec. Mstr. June 25, 2007)
(petitioner cannot obtain fee award once reasonable basis ceases to exist, based upon counsel’s
awareness that the medical record or expert opinion fails to support the claim); Di Roma, 1993 WL
496981, at *2.

         The scope and sufficiency of an attorney’s investigation into the basis for a petitioner’s
claim is highly relevant to determining if reasonable basis existed for filing the petition. This flows
naturally from the fact that the Act expressly requires petitioners to include an affidavit and
additional documentation with their initial filing. (Section 300aa-11(c)(1)(A) (Vaccine Act
requires that a petition shall contain “an affidavit, and supporting documentation, demonstrating
that the person who . . . died received a vaccine set forth in the Vaccine Injury Table”). Basic
inquiries by counsel are therefore required prior to the filing of a petition under the Act. See Di
Roma, 1993 WL 496981, at *2 (citing Lamb v. Sec'y of Health & Human Servs., 24 Cl. Ct. 255,
258-59 (1991)). Attorneys practicing in the Program are expected to conduct a reasonable pre-
filing investigation—including at a minimum an evaluation of the factual basis for the claim. See
Turner v. Sec’y of Health & Human Servs., No. 99–544V, 2007 WL 4410030, at *7 (Fed. Cl. Spec.
Mstr. Nov. 30, 2007). In determining the adequacy of the prefiling inquiry, special masters have
considered the circumstances under which the petition was filed, including whether petitioner filed
with the assistance of counsel, and if so, how much time before the filing deadline petitioner
provided counsel for pre-filing investigation. Id. at *6.

        Although in the history of the Program special masters have tended to be “quite generous
in finding a reasonable basis for petitioners” in granting fee awards in unsuccessful cases, that
generosity wanes where it is evident that counsel failed to investigate sufficiently the facts
underlying the claim. Riley v. Sec’y of Health & Human Servs., No. 09-276V, 2011 WL 2036976,
at *3 (Fed. Cl. Spec. Mstr. Apr. 29, 2011) (citation omitted); see also Murphy v. Sec’y of Health
& Human Servs., 30 Fed. Cl. 60, 62 (1993) (affirming denial of attorney’s fees where
contemporaneous records provided no basis for alleged injury), aff’d, 48 F.3d 1236 (Fed. Cir.
1995); Di Roma, 1993 WL 496981, at *3 (denying attorney’s fees and costs where “[m]inimal


                                                  6 
 
research and good sense should have indicated that th[e] case had no basis under the law”).

        The fact that a case must be filed quickly, to avoid being time-barred by the Act’s three-
year limitations period, is highly relevant to the reasonable basis analysis. As Petitioner alleges,
special masters have been lenient in finding reasonable basis if time constraints require prompt
action to avoid the cut-off date for bringing a claim. See, e.g., McNett v. Sec’y of Health & Human
Servs., No. 99-684V, 2011 WL 760314, at *7 (Fed. Cl. Spec. Mstr. Feb. 4, 2011) (citing Hearell
v. Sec’y of Health & Human Servs., No. 94–1420V, 1993 WL 129645, at *1 (Fed. Cl. Spec. Mstr.
Apr. 6, 1993) (“Because of the time constraints, it was reasonable for the petitioner to file an
incomplete petition in this case”)); Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007
WL 4410030, at *6 (Fed. Cl. Spec. Mstr. Nov. 30, 2007) (stating that “a filing on the eve of the
running of the statute of limitations may be supported by less information than would be expected
if counsel had more time to conduct a prefiling investigation of the factual underpinnings and the
medical basis for a vaccine claim”).

         Based on my review of the case record coupled with the history of counsel’s representation
of Petitioner as set forth in the billing records, I conclude that this matter had barely enough
reasonable basis to be viable – up to the time when Ms. Allicock determined, six months after
filing, that she could not proceed further. The Petition reflects Ms. Allicock’s awareness that
M.A.’s developmental problems preceded the May 2012 vaccinations, and also plainly asserts a
cause of action for significant aggravation. It is thus evident that, from the initiation of the case,
Petitioner understood the contours of her claim – contrary to Respondent’s assertions that such
facts undercut the claim’s ultimate factual strength. Petitioner also acted based on post-vaccination
diagnoses that M.A. had experienced an encephalopathy – and although such assertions may have
lacked strong support in the actual medical record, they were at least reflected in a medical opinion
(based on Petitioner’s recollection). See, e.g., Pet.r’s Ex. 12 at 45. Accordingly, she had some
grounds for proceeding, even if many of the records already in her possession highlighted
weaknesses in the case.

        It is true that counsel had control of the matter for four months prior to its May 2012 filing.
I would generally deem this sufficient time for investigating a claim’s viability. However, under
the circumstances there was enough time pressure on Petitioner to justify her acting despite some
hints of bigger problems with the claim. Furthermore, the lack of compelling evidence of the
alleged aggravation itself was not necessarily fatal to the claim when filed. In keeping with the
fact that Program claimants can prove entitlement with a wide variety of evidence, Petitioners can
establish the onset of symptoms based upon their own corroborated allegations, even where
contemporaneous medical records do not support the allegation. Vallenzuela v. Sec'y of Health &
Human Servs., No. 90-1002V, 1991 WL 182241, at *3 (Fed. Cl. Spec. Mstr. Aug. 30, 1991); see
also Eng v. Sec'y of Health & Human Servs., No. 90-1754V, 1994 WL 67704, at *3 (Fed. Cl. Spec.
Mstr. Feb. 18, 1994) (Section 13(b)(2) “must be construed so as to give effect also to § 13(b)(1)


                                                  7 
 
which directs the special master or court to consider the medical records (reports, diagnosis,
conclusions, medical judgment, test reports, etc.), but does not require the special master or court
to be bound by them”) (emphasis added).

        Ms. Allicock alleged that she observed a worsening of M.A.’s condition after his May 2012
vaccination, and that a treater had informed her that at some point M.A. experienced an
encephalopathy. While such evidence may not have been strong, and may have lacked
corroborative proof in the medical record, it was enough to suggest to her counsel that the claim
had some basis, and that review of as much of the record as possible was necessary before
concluding otherwise. I therefore find that that the case had reasonable basis through the time
Petitioner (when confronted by direct challenges to the claim’s deficiencies) decided to seek
dismissal six months after filing. I also credit counsel’s willingness to confront the realities of the
case with his client, and to end the matter immediately after learning of Respondent’s reaction to
the claim, as well as my own. This is not a case where a party continued with a facially-deficient
case long after it was self-evident, in the vain hope of turning up something probative.

        My ruling herein should not be interpreted to mean that I will always find reasonable basis
exists to bring claims alleging that an ASD-like developmental regression was induced by a
vaccine. It should now be clear to Program practitioners, based on numerous decisions published
in the past two years, that the theory that a child experienced a vaccine-induced encephalopathy
resulting in an ASD-like regression rarely succeeds without facially strong evidence.5 Petitioners,
and the counsel representing them, should act with great caution when considering whether to
advance such a claim, especially when not supported by corroborative medical record evidence.

III.          Challenges to the Amounts Requested for Petitioner’s Attorneys

              A.             Attorney Hourly Rates

       Determining the appropriate amount of an award of reasonable attorney’s fees 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 and Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2011) (quoting Blum v. Stenson, 465

                                                            
5
  An illustrative example of the kind of strong circumstantial proof necessary to succeed on such a theory is Wright v.
Sec'y of Health & Human Servs., No. 12-423V, 2015 WL 6665600, at *6 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). In
Wright, the petitioners met the Table criteria for an “acute encephalopathy” following vaccination by establishing by
preponderant evidence that the vaccinated child had experienced a seizure followed by loss of consciousness shortly
after receipt of pertussis-containing vaccine; the severe reaction lasted for more than 24 hours, with resulting
demonstrable significant changes in behavior. Wright, 2015 WL 6665600, at *30-31. But the special master
responsible for that decision (former Chief Special Master Vowell) explicitly noted in her decision that petitioners
would not have been able to establish entitlement (under the same facts) for a Non-Table claim, because their expert
presented a causation opinion that she found “absurd and biologically impossible.” Id. at *2.


                                                               8 
 
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 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 more precisely understood to be the “prevailing
market rate” in the relevant forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec’y of Health & Human
Servs., No. 06-559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev.
denied, 91 Fed. Cl. 453 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011). That rate is in turn
determined by the “forum rule,” which bases the award rate on rates paid to similarly qualified
attorneys in the forum where the relevant court sits (Washington, DC for Vaccine Program cases).
Avera, 515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours
expended must be considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves
consideration of the work performed on the matter, the skill and experience of the attorneys
involved, and whether any waste or duplication of effort is evident. Hensley, 461 U.S. at 434, 437.6

         In this case, Petitioner’s counsel asks for an award of fees for Mr. Downing’s services at
the rate of $350 per hour. In other cases, I have ruled that Mr. Downing, who practices in Arizona,
is entitled to the in-forum rate consistent with the ranges determined in McCulloch v. Sec’y of
Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
See Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *11, n.16
(Fed. Cl. Spec. Mstr. Sept. 30, 2015) (referencing McCulloch); see also Scharfenberger v. Sec’y
of Health & Human Servs., No. 11-221V, 2015 WL 3526559, at *6 (Fed. Cl. Spec. Mstr. May 15,
2015); Tieu Binh Le v. Sec’y of Health & Human Servs., No. 07-895V, 2014 WL 4177331, at *13
(Fed. Cl. Spec. Mstr. July 31, 2014) (range for “experienced attorneys” is $275 to $413 per hour);
Barrett v. Sec’y of Health & Human Servs., No. 09-389V, 2014 WL 2505689, at *12 (Fed. Cl.
Spec. Mstr. May 14, 2014) (applying range of $275 to $414 per hour for attorney with ten years
of experience). Because Petitioner asks for the same hourly rate I awarded in Al-Uffi, and have
applied in other cases involving Mr. Downing, and since Respondent does not otherwise object to
the rate, I will apply it to the fees request in this case.

       Petitioner further requests reimbursement for the work of the two associate attorneys on
the case at the same rate for both—$195 per hour. I awarded this rate for Mr. Redman’s work in
Al-Uffi—and there, as here, Respondent raised no objection to it. Al-Uffi, 2015 WL 6181669, at
                                                            
6
  In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is
a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum
in which the attorney practices, in order to adjust the rate is used for the lodestar calculation. Avera, 515 F.3d at 1349,
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999)). Here, however, the parties do not dispute that the forum rate and the rate prevailing among Arizona attorneys
(the geographic locale from which Mr. Downing practices) is substantially equivalent, obviating the need for such rate
comparison. See Opp. at 18.
 

                                                               9 
 
*3 n.5. What is more, the sum is consistent with the rate ranges established in McCulloch for an
attorney of his experience (five years total litigation experience, plus two years in the Program).
McCulloch, 2015 WL 5634323, at *20-21 (reviewing proper rates for comparable in-forum
attorneys). It is also a reasonable rate for Ms. Van Cott, although she has slightly less overall
experience. I therefore apply it herein to both attorneys.

              B.             Hours Expended by Petitioner’s Attorneys

        Determining a reasonable sum for a fees award in Vaccine Program cases involves more
than the mere performance of a mathematical calculation once an appropriate hourly rate is
established. I must also determine if the fee applicant has established the reasonableness of the
work performed. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986) (“[i]t
remains counsel’s burden to prove and establish the reasonableness of each dollar, each hour,
above zero.”).7 The special master is not obligated to evaluate an attorney’s billing records on a
line-by-line basis in deciding a fee petition. Saxton, 3 F.3d at 1521-22 (approving the special
master's elimination of 50 percent of the hours claimed); see also Broekelschen, 102 Fed. Cl. 719
at 728–29 (2011) (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) (affirming the special master's
reduction in the number of hours from 515.3 hours to 240 hours); Edgar v. Sec’y of Health &
Human Servs., 32 Fed. Cl. 506 (1994) (affirming the special master's awarding only fifty-eight per
cent of the numbers of hours for which compensation was sought). At bottom, as the Supreme
Court instructs, when awarding attorney’s fees, special masters may use estimates to achieve
“rough justice.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).

        Respondent offers a broad-brush objection to the reasonableness of time expended on this
matter. Opp. at 20-21. For the most part, her arguments about reasonable basis illuminate the
failure of counsel to determine sooner that the case lacked merit. But, as noted above, it is within
my discretion to determine whether the time devoted to the matter was reasonable regardless of
Respondent’s objections, and even where Respondent has not specified objectionable components
of a fees request, such as a category of work deemed inefficient or unnecessary. Sabella, 86 Fed.
Cl. 201, 208–09.

        Even though I find that sufficient reasonable basis for Ms. Allicock’s claim existed until
Petitioner’s decision to seek its dismissal, it is not my conclusion that all of the time devoted to
the case was reasonably spent. I am particularly troubled by the fact that counsel and his legal
assistants devoted nearly 40 hours to the case in the four months before it was filed. This was
ample investigatory time to devote to such a borderline-reasonable case, and to discover that its

                                                            
7
 Although Mares did not interpret the Vaccine Act’s fees provisions, fee-shifting statutes are interpreted similarly.
Avera, 515 F.3d at 1348.


                                                               10 
 
weaknesses outweighed its strengths. This did not occur.

        I also find objectionable (consistent with Respondent’s position) the amount of time
devoted to preparing the fees application – nearly one-half of the hours billed to the whole matter.
Mr. Downing billed more than 12 hours to the task (approximately $4,200) while his associate,
Ms. Van Cott, billed over 15 hours (an additional nearly $2,000). That is particularly unacceptable
in a case in which reasonable basis objections have as much heft as they do here. In addition, Mr.
Downing should be aware of the recent decisions, starting with Al-Uffi, in which I awarded him
the same requested hourly rate, rendering it unnecessary for him to devote so much time to
marshaling his arguments (even if Respondent was unwilling compromise on a fees figure).8

              In light of the above, I hereby reduce the time billed to this matter as follows:

        (a) All time billed by all attorneys on the matter between January 2015 and the filing of the
case in May 2015 is reduced by 25 percent. This reduction addresses counsel’s failure to act more
expeditiously in analyzing the claim, while also keeping in mind that Petitioner had limited time
to act before the limitations period cut-off. Therefore, one-fourth of the period Petitioner’s counsel
actually had to act should be discounted;

       (b) All time billed to the matter from the date of its filing until the motion for a decision
dismissing the case was granted in November 2015 is awarded; and

       (c) the amount billed thereafter to recover fees in this case is reduced by 30 percent (with
the exception of costs incurred in preparation of the reply; such costs are awarded in full, given
that Respondent herself prepared a lengthy brief requiring a response).

              Based upon the above, I arrive at the following calculations:

              (1)            Pre-Filing Fees, reduced by 25%

                             Mr. Downing (1/5/15—5/11/15): 7.5 hrs. – (.25 x 7.5) = 5.625 hrs. x $350 =
                             $1,968.75

                             Mr. Redman (1/28/15—5/5/15): 11.8 hrs. – (.25 x 8.85) = 8.85 hrs. x $195 =
                             $1,725.75




                                                            
8
  Indeed, counsel could have brought the issue to my attention before filing a motion, obviating the need not only for
briefing but also for the preparation of a decision.

                                                               11 
 
       (2)     Pre-Dismissal Fees, granted in full

               Mr. Downing (5/12/15—11/24/15): 5.2 hrs. x $350 = $1,820

               Mr. Redman (5/19/15—7/6/15): 4 hrs. x $195 = $780

       (3)     Fees Application Fees, reduced by 30%

               Mr. Downing (12/15/15—3/14/16): 12.2 hrs. – (.30 x 12.2) = 8.54 hrs. x $350 =
               $2,989

               Ms. Van Cott (12/17/15—2/9/16): 18.9 hrs. – (.30 x 18.9) = 13.23 hrs. x $195 =
               $2,579.85

       (4)     Fees Reply Fees, granted in full

               Mr. Downing (4/4/16—4/8/16): 3 hrs. x $350 = $1,050

               Ms. Van Cott (3/15/16—4/7/16): 13.80 hrs. x $195 = $2,691


IV.    Costs

         There are two categories of costs requested herein: paralegal costs and litigation-related
costs. As to the former, Petitioner requests reimbursement for the services of two paralegals at a
rate of $100 per hour. This rate is consistent with my prior awards to Mr. Downing’s firm. Al-Uffi,
2015 WL 6181669, at *3, 14 n.20. Respondent makes no objection to the proposed paralegal rates
either. I will therefore award the requested paralegal rates herein.

        With respect to paralegal time, Respondent offers no specific objections to the
reasonableness of any particular time entries. Although I have reduced the amount of attorney time
that I will award in this case, I will not also reduce paralegal time devoted to it. In a case in which
reasonable basis is a facial issue, and where (as here) record review assists the resolution of that
question, reasonable paralegal time productively aimed at gathering, organizing, and even
summarizing medical records is time well spent. And from my review of the billing records, it
does not appear to me that paralegal time was wasted in this case; indeed, the sum of Mr. Cain and
Ms. Avery’s time devoted to the case (approximately 26 hours) is not much more than what
Petitioner’s lead counsel spent on the matter. I will therefore award requested paralegal costs in
their entirety.



                                                  12 
 
        I reach the same conclusions with respect to the litigation costs requested herein, which
include the expenses of document gathering, photocopying, and online legal research. The total
sum requested (approximately $2,100) is reasonable for a case that lasted less than one year. I have
identified no particular cost categories that are objectionable, and Respondent has not otherwise
objected to any.

                                                               CONCLUSION

       Based on all of the above, the following chart sets forth the total calculation of Petitioner’s
interim fees award:

    Contested Sum                                 Amount Requested         Reduction              Total Awarded
    Mr. Downing’s Fees                            $9,765.00                $1,937.25              $7,827.75
    Mr. Redman’s Fees                             $3,081.00                $575.25                $2,505.75
    Ms. Van Cott’s Fees                           $6,376.50                $1,105.65              $5,270.85
    Paralegal Costs                               $2,660.00                None                   $2,660.00
    Litigation Costs                              $2,146.93                None                   $2,146.93



        Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of attorney’s fees and costs awards, and based on the foregoing, I GRANT IN PART Petitioner’s
Motion for Attorney’s Fees and Costs, awarding $20,411.28 in fees and costs. 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
                                                                                   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.

                                                                     13 
 
