In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-546V
MARVIN R. BARBER, Chief Special Master Corcoran
Petitioner, v. Filed: April 16, 2025
SECRETARY OF HEALTH AND Reissued for Public HUMAN SERVICES, Availability: March 12, 2026
Respondent.
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Madylan L. Yarc, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 20, 2023, Marvin Barber filed a Petition under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. 2 Petitioner alleges that his receipt of an influenza (“flu”) vaccine on November 17, 2021, resulted in a right-sided Shoulder Injury Related to Vaccine Administration (“SIRVA”) (a Table injury). Petition (ECF No. 1) at 1.
Petitioner has now filed a motion for an interim award of attorney’s fees and costs. Motion, dated Dec. 20, 2024 (ECF No. 33) (“Interim Fees Mot.”). It is the first fees request in this case, and is occasioned by counsel’s motion to withdraw from representation of Petitioner. See Motion to Withdraw, dated Dec. 20, 2024 (ECF No. 34). Petitioner requests a total of $46,135.97 in attorney and paralegal fees for the work of his attorney,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims’ website in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). 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, I agree that the identified material fits within this definition, I will redact such material from public access. Pursuant to Vaccine Rule 18(b), this Decision was initially filed on April 16, 2025, and the parties were afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this Decision will be available in its original form fr posting on the court's website. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Jimmy A. Zgheib, plus a paralegal from April 2023 to December 2024. Interim Fees Mot. at 2. Respondent reacted to the interim fees request on January 2, 2025. See Response, dated Jan. 2, 2025 (ECF No. 35) (“Resp.”). Respondent defers to my discretion as to whether the statutory requirements for an award of attorney’s fees and costs are met in this case, and if so, the calculation of the amount to be awarded. Resp. at 2, 4. Petitioner did not file a reply.
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and costs in the total amount of $46,135.97.
ANALYSIS
I. Petitioner’s Claim has 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 reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). I have not yet decided entitlement in this matter, but interim requests are subject to this same reasonable basis analysis – and withdrawal of counsel is a proper occasion to consider such an interim request.
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 basis 3 is demonstrated through some objective evidentiary showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (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. 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
3 Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable
to that fees prong.
2 once they had reviewed their expert's opinion, which consisted entirely of unsupported speculation).
The standard for 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). 4
Also, relevant herein are the standards governing interim awards—meaning fees awards issued while a case is still pending. See generally Auch v. Sec'y of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *6–9 (Fed. Cl. Spec. Mstr. May 20, 2016); Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5– 9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It is well-established that a decision on entitlement is not required before fees or costs may be awarded. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).
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In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-546V
MARVIN R. BARBER, Chief Special Master Corcoran
Petitioner, v. Filed: April 16, 2025
SECRETARY OF HEALTH AND Reissued for Public HUMAN SERVICES, Availability: March 12, 2026
Respondent.
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Madylan L. Yarc, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On April 20, 2023, Marvin Barber filed a Petition under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. 2 Petitioner alleges that his receipt of an influenza (“flu”) vaccine on November 17, 2021, resulted in a right-sided Shoulder Injury Related to Vaccine Administration (“SIRVA”) (a Table injury). Petition (ECF No. 1) at 1.
Petitioner has now filed a motion for an interim award of attorney’s fees and costs. Motion, dated Dec. 20, 2024 (ECF No. 33) (“Interim Fees Mot.”). It is the first fees request in this case, and is occasioned by counsel’s motion to withdraw from representation of Petitioner. See Motion to Withdraw, dated Dec. 20, 2024 (ECF No. 34). Petitioner requests a total of $46,135.97 in attorney and paralegal fees for the work of his attorney,
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am 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). 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, I agree that the identified material fits within this definition, I will redact such material from public access. Pursuant to Vaccine Rule 18(b), this Decision was initially filed on April 16, 2025, and the parties were afforded 14 days to propose redactions. The parties did not propose any redactions. Accordingly, this Decision will be available in its original form fr posting on the court's website. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Jimmy A. Zgheib, plus a paralegal from April 2023 to December 2024. Interim Fees Mot. at 2. Respondent reacted to the interim fees request on January 2, 2025. See Response, dated Jan. 2, 2025 (ECF No. 35) (“Resp.”). Respondent defers to my discretion as to whether the statutory requirements for an award of attorney’s fees and costs are met in this case, and if so, the calculation of the amount to be awarded. Resp. at 2, 4. Petitioner did not file a reply.
For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding fees and costs in the total amount of $46,135.97.
ANALYSIS
I. Petitioner’s Claim has 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 reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). I have not yet decided entitlement in this matter, but interim requests are subject to this same reasonable basis analysis – and withdrawal of counsel is a proper occasion to consider such an interim request.
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 basis 3 is demonstrated through some objective evidentiary showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (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. 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
3 Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable
to that fees prong.
2 once they had reviewed their expert's opinion, which consisted entirely of unsupported speculation).
The standard for 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). 4
Also, relevant herein are the standards governing interim awards—meaning fees awards issued while a case is still pending. See generally Auch v. Sec'y of Health & Human Servs., No. 12-673V, 2016 WL 3944701, at *6–9 (Fed. Cl. Spec. Mstr. May 20, 2016); Al-Uffi v. Sec'y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5– 9 (Fed. Cl. Spec. Mstr. Sept. 30, 2015). It is well-established that a decision on entitlement is not required before fees or costs may be awarded. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *8 (Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also Cloer v. Sec’y of Health and Human Servs., 675 F.3d 1358, 1362 (Fed. Cir. 2012); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008).
There is no presumption of entitlement to interim awards, but special masters may in their discretion permit such awards, and often do so. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim costs are subject to the same standards governing fees. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52 Fed. Cl. 667, 670 (2002); Fester, 2013 WL 5367670, at *16. However, there must be some showing that a petitioner’s circumstances render an interim award just. Criteria that I have found to be important in determining whether an interim award should be permitted include: 1) whether the amount of fees requested exceeds $30,000; 2) where expert costs are requested, if the aggregate amount is more than $15,000; and/or 3) whether the case has been pending for more than 18 months. See Knorr v. Sec’y of Health & Human Servs., No. 15-1169V, 2017 WL 2461375 (Fed.
4 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).
3 Cl. Spec. Mstr. Apr. 17, 2017).
I find that Petitioner has made a sufficient showing of reasonable basis to justify an interim fees award. While the ultimate resolution of causation remains to be determined, Petitioner has put forward some objective evidentiary support for his claim. The claim does possess some obvious substantive weaknesses – onset in particular – and they may prove insurmountable. But at the present time, the matter has the bare objective proof necessary for a favorable reasonable basis finding. Additionally, I have often noted that counsel’s withdrawal is a proper occasion for an interim fees award. Accordingly, I will permit an award of fees at counsel’s withdrawal.
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 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 attorney and paralegals, based on the years work was performed:
2022 2023 2024 Jimmy A. Zgheib $330.00 $360.00 $400.00 (Attorney) Jennifer A. Sayad $360.00 $378.00 $420.00
4 (Attorney) AnnMarie N. -- $360.00 $400.00 Sayad (Attorney) Paralegal $165.00 $175.00 $185.00
ECF No. 33-1 at 1–24.
The requested hourly rates for work performed through the end of 2024 in this matter are reasonable and consistent with what has previously been awarded and in accordance with the Office of Special Masters’ fee schedule. 5 See Joyce v. Sec’y of Health & Hum. Servs., No. 20-1882V, 2024 WL 3467138, at *2 (Fed. Cl. Spec. Mstr. June 13, 2024). I thus find no cause to reduce them in this instance. And I deem the time devoted to the matter reasonable, and will therefore award all fees requested without adjustment.
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 $2,872.27 in outstanding costs, including the filing fee, medical record retrieval costs, and mailing costs. ECF No. 33-2 at 2–3. All are commonly incurred in the Vaccine Program and are reasonable herein. All requested costs shall also be awarded.
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 Interim Motion for Attorney’s Fees and Costs in its entirety and award a total of $46,135.97 reflecting $43,263.70 in attorney’s fees and $2,872.27 in costs, to be paid through an ACH deposit
5 OSM Attorneys’ Forum Hourly Rate Fee Schedule, https://www.uscfc.uscourts.gov/node/2914 (last visited
Apr. 16, 2025).
5 to Petitioner’s counsel’s IOLTA account for prompt disbursement.
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. 6
IT IS SO ORDERED. s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master
6 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.