McCarthy v. Secretary of Health and Human Services

• Court: United States Court of Federal Claims
• Decided: March 16, 2026
• Docket: 21-0425V
• Status: Unpublished

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0425V

SARA MCCARTHY, Chief Special Master Corcoran

Petitioner, Filed: February 11, 2026 v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Brynna Gang, Kraus Law Group, LLC, Chicago, IL, for Petitioner.

Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEY’S FEES AND COSTS1

On January 8, 2021, Sara McCarthy 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 alleges that she suffered a left shoulder injury related to vaccine administration (“SIRVA”), as set forth in the Vaccine Injury Table, after receiving an influenza (“flu”) vaccine on December 30, 2019. Petition at 1.

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 (2018). Although the claim was unsuccessful, I find it possessed sufficient reasonable basis to permit an award of attorney’s fees. But a minor reduction in the amount of fees to be awarded is appropriate, for the reasons set forth below.

I. Relevant Procedural History On June 10, 2022, Respondent filed his Rule 4(c) Report opposing compensation, arguing that the onset element for a Table SIRVA claim could not be met (ECF No. 27). After a status conference, Petitioner was provided the opportunity to file additional evidence (ECF No. 28) and did so (ECF Nos. 29, 32). Thereafter, I reviewed the record, and ordered Petitioner to show cause why her claim should not be dismissed for insufficient proof (ECF No. 34). Petitioner responded to the show cause order (ECF No. 38). On November 29, 2023, I issued a decision dismissing the case (ECF No. 39). On February 5, 2024, Petitioner filed a motion seeking a total of $26,912.12, comprised of $26,327.40 in fees, and attorney’s costs of $584.72 (ECF No. 43). Counsel confirmed that Petitioner has not individually incurred any fees or costs. Respondent reacted to the motion the following day, stating that he was 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 (ECF No. 44). II. Reasonable Basis A. Legal Standard Motivated by a desire to ensure that petitioners have adequate assistance from counsel when pursuing their claims, Congress determined that attorney’s fees and costs may be awarded even in unsuccessful claims. H.R. REP. NO. 99-908, at 22 reprinted in 1986 U.S.C.C.A.N. 6344, 6363; see also Sebelius v. Cloer, 569 U.S. 369, 380 (2013) (discussing this goal when determining that attorneys’ fees and costs may be awarded even when the petition was untimely filed). As Judge Lettow noted in Davis, “the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Human Servs., 105 Fed. Cl. 627, 634 (2012). It may be the only federal fee-shifting statute that permits unsuccessful litigants to recover fees and costs. However, Congress did not intend that every losing petition be automatically entitled to attorney’s fees. Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). And there is also a prerequisite to even obtaining fees in an unsuccessful case. The special master or court may award attorney’s fees and costs in a case in which compensation was not awarded only if “that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Section 15(e)(1). Reasonable basis is a prerequisite to a fee award for unsuccessful cases – but establishing it does not automatically require an award, as special masters are still empowered by the Act to deny or limit fees. James-Cornelius on behalf of E. J. v. Sec'y of Health & Human Servs., 984 F.3d 1374, 1379 (Fed. Cir. 2021) (“even when these two requirements are satisfied, a special master retains discretion to grant or deny attorneys’ fees”). As the Federal Circuit explained, whether a discretionary fees award is appropriate involves two distinct inquiries – a subjective one when assessing whether the petition was brought in good faith and an objective one when ascertaining whether reasonable basis existed. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (quoting Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied through subjective evidence.” Cottingham v. Sec’y of Health & Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Cottingham I”). “[T]he ‘good faith’ requirement . . . focuses upon whether petitioner honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of Health & Human Servs., No. 99-0544V, 2007 WL 4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). Cases in which good faith has been found to be lacking often involve petitioners who failed to produce or actively concealed evidence undermining their claims. Purnell- Reid v. Sec’y of Health & Human Servs., No. 18-1101V, 2020 WL 2203712 (Fed. Cl. Spec. Mstr. Apr. 6, 2020); Crowding v. Sec’y of Health & Human Servs., No. 16-0876V, 2019 WL 1332797 (Fed. Cl. Spec. Mstr. Feb. 26, 2019); Heath v. Sec'y of Health & Human Servs., No. 08-0086V, 2011 WL 4433646 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Carter v. Sec'y of Health & Human Servs., No. 90-3659V, 1996 WL 402033 (Fed. Cl. Spec. Mstr. July 3, 1996). “Additionally, a petitioner’s attorney’s conduct may also be relevant when evaluating good faith.” Purnell-Reid, 2020 WL 2203712, at *6. “Counsel still have a duty to investigate a Program claim even if they reasonably find their client to be a credible individual.” Cortez v. Sec'y of Health & Human Servs., No. 09-0176V, 2014 WL 1604002, at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014). Factors, such as a looming statute of limitations and the conduct of counsel, are properly considered when determining whether good faith exists – but do not bear on the claim’s objective basis. Simmons, 875 F.3d at 636; Amankwaa v. Sec'y of Health & Human Servs., 138 Fed. Cl. 282, 289 (2018) (“the effort that an attorney makes to investigate a claim or to ensure that a claim is asserted before the expiration of the statutory limitations period . . . are properly evaluated in determining whether a petition was brought in good faith”). “Reasonable basis, on the other hand, is an objective test, satisfied through objective evidence.” Cottingham I, 971 F.3d at 1344. The reasonable basis requirement examines “not at the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner, 2007 WL 4410030, at *6 (quoting Di Roma v. Sec’y of Health & Human Servs., No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). The Federal Circuit recently explained “that a reasonable basis analysis is limited to objective evidence, and that subjective considerations, such as counsel’s subjective views on the adequacy of a complaint, do not factor into a reasonable basis determination.” James- Cornelius, 984 F.3d at 1379. Although clearly easier to meet than the preponderant standard required for compensation, “courts have struggled with the nature and quantum of evidence necessary to establish a reasonable basis.” Wirtshafter v. Sec’y of Health & Human Servs., 155 Fed. Cl. 665 at 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must furnish some evidence in support of the claim.’” Id. (quoting Chuisano, 116 Fed. Cl. at 288, emphasis added in Wirtshafter). Citing the prima facie elements of a successful claim described in Section 11(c)(1), the Federal Circuit recently instructed that the level of the objective evidence sufficient for a special master to find reasonable basis should be “more than a mere scintilla but less than a preponderance of proof.” Cottingham I, 971 F.3d at 1345-46. “This formulation does not appear to define reasonable basis so much as set its outer bounds.” Cottingham v. Sec’y of Health & Human Servs., 159 Fed. Cl. 328, 333, (Fed. Cl. 2022), aff’d without op., No. 2022-1737, 2023 WL 7545047 (Fed. Cir. Nov. 14, 2023) (“Cottingham II”). “[T]he Federal Circuit’s statement that a special master ‘could’ find reasonable basis based upon more than a mere scintilla does not mandate such a finding.” Cottingham II, 159 Fed. Cl. at 333 (citing Cottingham I, 971 F.3d at 1346). Furthermore, the issue of reasonable basis is not a static inquiry. The reasonable basis which existed when a claim was filed may cease to exist as further evidence is presented. Perreira, 33 F.3d at 1377. In Perreira, the Federal Circuit affirmed a special master’s determination that reasonable basis was lost after Petitioner’s “expert opinion, which formed the basis of the claim, was found to be unsupported by either medical literature or studies.” Id. at 1376. B. Existence of Reasonable Basis in this Case I dismissed this case because I determined that Petitioner had not preponderantly established that the onset of her shoulder pain likely occurred within 48 hours of vaccination. Dismissal Decision, ECF No. 39, at *10-11. Petitioner’s first treatment occurred eight months after vaccination, at which time she stated her pain began in February 2020 – over a month after vaccination. However, I noted that there was a medical record which stated her pain began in January 2020. Id. at *10. While I found this record provided little support to a claim of onset within 48 hours, had I found that the onset of Petitioner’s pain occurred on January 1, 2020, that would satisfy the Table onset element. Thus, while I found that a more likely reading of that record suggested a later onset, there was some objective evidentiary support for a Table-compliant onset (especially if it could have been corroborated with other evidence). Accordingly, there was a reasonable basis for the claim. And there is no other basis for a denial of fees, despite the claim’s lack of success. Therefore, the only remaining question is the appropriate amount of the attorney’s fees and costs to be awarded. III. Appropriate Amount to be Awarded A. Legal Standard Under the Vaccine Program, reasonable attorneys’ fees and costs are limited to those “incurred in any proceeding on [a] petition.” Section 15(e)(1); see also Krause v. Sec’y of Health & Human Servs., No. 01-93V, 2012 WL 4477431, at *6 (Fed. Cl. Spec. Mstr. June 20, 2012). It is clearly established that secretarial and administrative work “should be considered as normal overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Hum. Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.” Mostovoy v. Sec’y of Health Hum. Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016) (citing Rochester, 18 Cl. Ct. at 387). 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 & Human 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 & Human 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 & Human 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 & Human Servs., 102 Fed. Cl. 719, 729 (2011). B. Attorney’s Fees and Costs The billing records submitted with the Motion reveal the performance of tasks related to the name change of Petitioner’s counsel’s law firm. I find that these are administrative tasks properly included in a firm’s normal overhead costs, and thus accounted for by attorney and paralegal rates - not billed as a separate charge to the case. Rochester, 18 Cl. Ct. at 387. This results in a reduction of $185.00.3 Otherwise, I find no cause to reduce the requested hours or rates. Petitioner billed a reasonable amount of time using hourly rates previously approved for all attorneys and

3 See billing entries dated 5/3/22, 5/19/22, 5/20/22 (reduced by 50%), 5/25/22, and 6/15/22. paralegals4 performing this work. ECF No. 43 She provided supporting documentation for all claimed costs. Id. And Respondent offered no specific objection to the rates or amounts sought.

Conclusion I have determined that an award of reasonable attorney’s fees and costs is appropriate in this case even though compensation was not awarded. Section 15(e)(1).

Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs and award a total of $26,727.12 (representing $26,142.40 in fees and $584.72 in costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. The Clerk of the Court is directed to enter judgment in accordance with this Decision.5

IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

4 The request includes entries for three individuals, Joyce Westphal, Amanda Ramos, and Megan Vignocchi, whose role is not identified in the fee request. Petitioner’s counsel stated that all three were paralegals in an informal email communication on February 11, 2026. 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.