Molter v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-1719V

DAVID MOLTER, Chief Special Master Corcoran Petitioner, v. Filed: June 24, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

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

Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS1 On October 3, 2023, David Molter 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as the result of an influenza vaccine received on January 12, 2022. Petition at 1, ECF No. 1. On February 28, 2025, I issued a decision awarding damages to Petitioner based upon Respondent’s proffer. ECF No. 29.

1Because 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.

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).

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $22,740.19 (representing $22,069.60 for fees and $670.59 for costs). Petitioner’s Application for Attorneys’ Fees, filed May 2, 2025, ECF No. 34. In accordance with General Order No. 9, Petitioner filed a signed statement indicating that he incurred no out-of-pocket expenses. Id. at 2. Respondent has not filed a response.

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 2024 are reasonable and consistent with our prior determinations, and will therefore be adopted. However, Petitioner has requested an hourly rate of $550.00, for work performed by Ms. Durant in 2025, representing an increase of $64.00, which is greater than what I usually would award.

Furthermore, given her 2007 bar date, Ms. Durant is considered to have 18 years of experience in 2025. This places her in the Fee Schedules range of attorneys with 11 to 19 years of experience.3 For work performed in 2025, attorneys with this experience level may be awarded $438 to $547. Thus, Ms. Durant’s requested rate is $3.00 greater than the maximum amount allowed for her experience level.

Instead, I find that the hourly rate of $530.00 is more appropriate for work performed by Ms. Durant in 2025. Although she has extensive vaccine experience, Ms. Durant’s level of general legal experience is one year less than the maximum for this range. And the rate of $530.00 still represents a substantial increase of $46.00 from her 2024 rate. Application of the foregoing reduces the amount of fees to be awarded by $70.00.4 Regarding the time spent working on this case, I find it to be reasonably expended.

Thus, I will make no reductions to the hours billed.

ATTORNEY COSTS Petitioner requests $670.59 in overall attorney costs and has provided receipts for all expenses. ECF No. 34-2. And Respondent offered no specific objection to the amounts sought. I have reviewed all requested costs and find them to be reasonable.

The Vaccine Program’s Attorney’s Forum Hourly Rate Fee Schedules are available on the U.S. Court of Federal Claim’s website: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules.

4 This amount consists of ($550.00 - $530.00) x 3.5 hrs. = $70.00. ECF No. 34-1 at 9 (entry dated 4/30/25).

CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $22,670.19 (representing $21,999.60 for fees and $670.59 in attorney’s costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this Decision.5 IT IS SO ORDERED.

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

5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review.