Leone v. Secretary of Health and Human Services

Federal Claims

Leone v. Secretary of Health and Human Services

United States Court of Federal Claims·Decided August 29, 2025·No. 19-0360V·Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0360V

SUSAN LEONE, Chief Special Master Corcoran Petitioner,

v. Filed: July 30, 2025

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

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

Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1

On March 11, 2019, Susan Leone filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). Petitioner alleged that she suffered a Table Injury – a Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of an influenza vaccine received on September 12, 2017. Petition, ECF No. 1 at 1. On August 20, 2024, I issued a decision

1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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.

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 (2012).

awarding compensation to Petitioner, following briefing and expedited Motions Day argument by the parties. ECF No. 65.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $64,942.23 (representing $62,620.90 for fees and $2,321.33 for costs). Petitioner’s Motion for Fees and Costs filed Mar. 12, 2025, ECF No. 71. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-ofpocket expenses. Id. at 2.

Respondent reacted to the motion on March 26, 2025, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 72. On April 11, 2025, Petitioner filed a reply, criticizing Respondent’s hourly rate discussion and reiterating her previous fees request. ECF No. 73.

Having considered the motion along with the invoices and other proof filed in connection, I find a reduction in the amount of fees to be awarded appropriate, for the reason set forth below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the special master may reduce a fee request 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 & Hum. Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum. Servs., 102 Fed. Cl. 719, 729 (2011).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl. Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.

ATTORNEY FEES

The rates requested for work performed through the end of 2025 are reasonable and consistent with our prior determinations, and will therefore be adopted. Leah Durant utilized her 2024 hourly rate for one entry related to work performed in 2025. ECF No. 71- 1 at 16 (entry dated 2/24/25). And she correctly reduced her rate when performing work that does not require attorney expertise. E.g., id. at 12 (entry dated 3/29/22).

Regarding the number of hours billed, I deem the total amount of time devoted to briefing damages to be excessive. See Status Report, filed Feb. 25, 2022, ECF No. 49 (reporting an impasse in the parties’ damages discussions); Petitioner’s Brief on Damages, filed Mar. 31, 2022, ECF No. 52; Petitioner’s Reply to Respondent’s Brief on Damages, June 22, 2022, ECF No. 56. Petitioner’s counsel expended approximately 24.5 hours drafting the damages brief and 20.0 hours drafting a reply, totaling 44.53 hours. ECF No. 71-1 at 11-12.

My above calculation does not include time spent preparing the initial demand which would have informed this later work, and I am therefore awarding fees associated with that task in full. ECF No. 71-1 at 5-7. Nor am I counting time spent communicating with Petitioner and preparing additional supporting documentation such as affidavits or signed declarations, which is also being awarded in full. See, e.g., id. at 11 (entries dated 3/23/22, 3/29/22, 5/31/22).

It is unreasonable for counsel to spend so much time briefing the issue of damages in this case, where the issues presented are not complex. I have identified numerous

3 This total is calculated as follows: 44.5 hours billed on 3/16/22, 3/21/22 (two entries), 3/31/22, 5/24/22,

5/25/22, 5/26/22, 6/6/22, and 6/22/22, by Richard Amada at a rate of $420. ECF No. 71-1 at 11-12.

cases (which may reasonably be compared to time spent in this matter), 4 in which attorneys have accomplished this task in about half the time.5

4 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are

excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993). 5 See, e.g., Lang v. Sec’y of Health & Hum. Servs., No. 21-0972V (June 26, 2025) (12.3 and 7.6 hours

Free access — add to your briefcase to read the full text and ask questions with AI