Walker v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-0366V

MARVIN WALKER, Chief Special Master Corcoran Petitioner, Filed: March 9, 2026 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.

Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 8, 2021, Marvin Walker filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). An Amended Petition was filed on August 3, 2021. ECF No. 13. Petitioner alleged that he suffered a shoulder injury related to vaccine administration (“SIRVA”), a defined Table injury, after a flu vaccine he received on November 1, 2019. Amended Petition at 1.

Although the claim was unsuccessful, I find it possessed sufficient reasonable basis to permit an award of attorney’s fees. And I have reviewed the submitted billing records, and find no reduction in the amount of fees to be awarded is needed.

I. Relevant Procedural History On March 28, 2023, Respondent filed his Rule 4(c) Report contending that Petitioner had not established that the onset of his shoulder pain occurred within the 48- hour period required for a Table SIRVA claim. Rule 4(c) Report at 6. After reviewing the record and both parties’ briefs, I issued a decision dismissing Petitioner’s Table SIRVA claim, and ordering him to show cause how a non-Table claim might succeed. ECF No. at 9. Petitioner then sought to voluntarily dismiss his case. See ECF No. 35-36.

On March 14, 2025, Petitioner filed a motion seeking a total of $23,351.07 in attorney fees and costs, comprised of $22,293.90 in fees and $1,057.17 in costs. ECF No. 39 at 5. Petitioner states that he did not personally incur any costs. Id. Respondent reacted to the motion on March 26, 2025, stating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met” but defers to my discretion as to the amount of reasonable amount. ECF No. 40 at 2.

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, 133 S.Ct. 1886, 1895 (2013) (discussing this goal when determining that attorneys’ fees and costs may be awarded even when the petition was untimely filed). This is consistent with the fact that “the Vaccine Program employs a liberal fee-shifting scheme.” Davis v. Sec’y of Health & Hum.

Servs., 105 Fed. Cl. 627, 634 (2012). Indeed, 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 & Hum. 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 to an unsuccessful claimant only if “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 & Hum. Servs., 984

2 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 has explained, whether a discretionary fees award is appropriate involves two distinct inquiries, but only reasonable basis is at issue herein. 3 Reasonable basis is deemed “an objective test, satisfied through objective evidence.”

Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) (“Cottingham I”). “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 & Hum. 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 & Hum. Servs., 155 Fed. Cl. 665, 671 (Fed. Cl. 2021). “[I]t is generally accepted that ‘a petitioner must furnish some evidence in support of the claim.’” Id. 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 & Hum. Servs., 159 Fed. Cl. 328, 333, (Fed. Cl. 2022) (“Cottingham II”), aff’d without op., 2023 WL 754047 (Fed. Cir. Nov. 14, 2023). “[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.

At issue here, Vaccine Act Section 11(c)(1)(D)(i) requires the establishment of an injury and residual effects lasting for over six months after the date of vaccination. This is a threshold requirement for entitlement. Black v. Sec’y of Health & Hum. Servs., 33 Fed. Cl. 546, 550 (1995) (reasoning that the “potential petitioner” must not only make a prima facie case, but clear a jurisdictional threshold, by “submitting supporting documentation which reasonably demonstrates that a special master has jurisdiction to hear the merits of the case”), aff’d, 93 F.3d 781 (Fed. Cir. 1996) (internal citations omitted).

B. Existence of Reasonable Basis I dismissed this case because Petitioner had not preponderantly established that the onset of his shoulder pain likely occurred within 48 hours of vaccination. ECF No. 32 at 7-9. Petitioner did not seek treatment for his shoulder pain until 4.5 months after vaccination, and at that time he reported pain for only 1.5 months. Ex. 4 at 24. A month later, Petitioner reported to an orthopedist shoulder pain for 2.5 months – consistent with his earlier report of onset. Ex. 5 at 40. The first time Petitioner linked his shoulder pain to his vaccination was not until eight months after vaccination. See Ex. 6 at 64. And although Petitioner provided testimony from several witnesses, none addressed the timing of onset of his pain to a sufficient degree to outweigh the record evidence. See Ex. 19-23.

Although this evidence was insufficient to substantiate Petitioner’s Table claim, it is sufficient to satisfy the much lower reasonable basis standard. Despite the fact that Petitioner’s reports regarding the onset of his shoulder pain were inconsistent, he did link his pain to his vaccination in later records. See Ex. 5 at 25; Ex. 6 at 64. Petitioner also provided reasonable explanations for his delay in seeking treatment. See ECF No. 32 at 8. And I dismissed only Petitioner’s Table claim – leaving open a path to compensation as a non-Table claim. ECF No. 32 at 9. Further, Respondent does not oppose an award of fees in this case. See ECF No. 40 at 2. Thus, there is objective proof in support of the claim and there is no other basis for a denial of fees. 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 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).

B. Attorney’s Fees and Costs I have reviewed the billing records submitted with Petitioner’s request. The fees amount sought appears reasonable, and 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 paralegals performing this work. ECF No. 39-2 at 2-18.

The case also required additional briefing regarding entitlement. See Petitioner’s Brief in Support of Onset, filed June 23, 2023, ECF No. 30. Petitioner’s counsel expended approximately 12.7 hours drafting the entitlement brief, and I find this amount of time to be reasonable. All time billed to the matter was thus reasonably incurred.

Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 39-3 at 2-7. I find the requested costs reasonable and hereby award them in full.

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 $23,351.07 (representing $22,293.90 in fees and $1,057.17 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. 4 IT IS SO ORDERED.

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