Lenkowsky v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-439V

DANA J. LENKOWSKY,

Chief Special Master Corcoran Petitioner, Filed: October 22, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Robert Joel Krakow, Law Office of Robert J. Krakow, P.C. New York, NY, for Petitioner. Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 11, 2021, Dana J. Lenkowsky 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 shoulder injury related to vaccine administration (“SIRVA”) following an influenza vaccine she received on September 27, 2020. Petition, ECF No. 1. On March 24, 2025, I issued a decision awarding compensation to Petitioner based on the Respondent’s proffer. ECF No. 86.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $81,043.03 (representing $80,140.40 in fees plus $902.63 in costs). Application for Attorney’s Fees and Costs (“Motion”) filed July 19, 2025, ECF No. 91. Furthermore, Petitioner filed a signed statement representing that no personal out-of-pocket expenses were incurred. ECF No. 91-5 at 1.

Respondent reacted to the Motion on August 4, 2025, stating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Response at 2, 4. ECF No. 92. Petitioner noted thereafter that she did not intend to file a substantive reply, deferring instead to the facts, law, and argument submitted in the Motion. ECF No. 93.

I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of fees and costs to be awarded appropriate, for the reasons set forth below.

ANALYSIS

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. 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 & 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).

The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human 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 I have reviewed the billing records submitted with Petitioner’s request. The rates requested for work performed by attorney Robert Krakow through 2024 are reasonable and consistent with our prior determinations, and will therefore be awarded herein. However, the rates requested for work performed in 2025 require adjustment, and some work devoted to the matter was improperly billed.

Mr. Krakow was previously awarded a lesser rate for 2025 than requested herein ($584.00 for work performed in 2025, versus the $627.00 sought in this matter). See I.J. v. Sec’y of Health & Hum. Servs., No. 16-864, 2021 WL 3627107 (Fed. Cl. Spec. Mstr. July 20, 2021); Kotch v. Sec’y of Health & Hum. Servs., No. 19-675, 2025 WL 1012834 (Fed. Cl. Spec. Mstr. February 27, 2025). I find no reason to deviate from those determinations, and it otherwise is not the practice of OSM to adjust prior rate determinations upward in later cases. See Jefferson v. Sec’y of Health & Hum. Servs., No. 19-1882, 2023 WL 387051 (Fed. Cl. Spec. Mstr. Jan. 9, 2023). Accordingly, I reduce attorney Krakow’s rate to be consistent with I.J. and Kotch. Application of the foregoing reduces the fees to be awarded herein by $1,376.00. 3

In addition, the billing records reveal that numerous tasks performed by attorney Robert Krakow in this matter were more properly billed using a paralegal rate.4 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Counsel is admonished that although these billing entries reflect reasonably performed tasks generally, they must be charged at a reduced rate comparable to that of a paralegal.

In evaluating a motion for attorney’s fees and costs, special masters “need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). Instead, in appropriate circumstances they may make reasonable, across-the-board percentage adjustments. Here, such an overall percentage cut is reasonable, and preferrable to a time-consuming line-by-line review of the bill. I therefore reduce the total fees to be awarded herein by five percent as a fair adjustment to account for the paralegal duties issue mentioned. This reduction is also appropriate for a matter resolved for a sum that was nearly half of what counsel billed to the case. Application of the foregoing further reduces the total amount of fees to be awarded by $4,007.02.5

ATTORNEY COSTS Petitioner requests $902.63 in overall costs. ECF No. 91-2 at 1-17. Such costs reflect the expenses of obtaining medical records, photocopying, and the Court’s filing fee. I have reviewed the requested costs, but find that Petitioner’s counsel has not substantiated some of the requested costs with the required documentation, such as an invoice or proof of payment. Before reimbursement of costs will be made, sufficient supporting documentation, such as invoices, receipts, and billing statements, must be provided. See Guidelines for Practice Under the National Vaccine Injury Compensation Program at 72-74 (emphasis added).6

When Petitioners fail to provide appropriate documentation to substantiate a requested cost, special masters have refrained from awarding the relevant sum. 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). And Petitioner had adequate time to obtain corroboration for these costs. Accordingly, I disallow reimbursement for all unsubstantiated costs herein. This results in a reduction in the total amount of litigation costs to be awarded by $177.82.

CONCLUSION

The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT, in part, Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded attorney’s fees and costs in the total amount of $75,482.19 (representing $74,757.38 in fees plus $724.81 in 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. 7 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master