Thao v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-1280V Filed: April 30, 2026

Special Master Horner EVE Y. THAO,

Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

Richard H. Moeller, Moore, Corbett, Moeller & Meis, LLP, Sioux City, IA, for petitioner. Ryan Nelson, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS1 On April 23, 2021, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 (“Vaccine Act”). (ECF No. 1.) Petitioner alleged that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from her hepatitis B vaccination that she received on July 13, 2020. (Id. at 1-2.) On July 2, 2025, a decision was issued finding that petitioner is not entitled to compensation. (ECF No. 83.)

On July 22, 2025, petitioner filed a motion seeking an award of attorneys’ fees and costs. (ECF No. 84.) Petitioner seeks a total of $75,449.61, which includes $72,783.10 for attorneys’ fees and $2,666.51 for attorneys’ costs. (Id. at 18; ECF No. 84-1, pp. 32-33; ECF No. 84-2, p. 2.) The requested costs include a $2,000.00 retainer for the work of Marko Bodor, M.D. (ECF No. 84-2, p. 2.) Petitioner confirmed that she did not incur any personal expenses. (ECF No. 85-1, p. 1.) In his response, respondent deferred to the court with respect to whether the statutory requirements for an award of attorneys’ fees and costs have been met as well as with respect to the reasonable amount of any award of attorneys’ fees and costs. (ECF No. 88.)

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 300aa-15(e). Petitioners are entitled to an award of reasonable attorneys’ fees and costs if they are entitled to compensation under the Vaccine Act or, even if they are unsuccessful, if the special master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here, although petitioner did not prevail, I am satisfied that this case was brought in good faith and that the petition had a reasonable basis.

The billing records reflect that all work performed in this case was billed at hourly rates that have previously been accepted for this counsel. Additionally, in the undersigned’s experience, the request for attorneys’ fees appears reasonable overall given the specific procedural history of this case. The costs also appear to be reasonable and sufficiently documented. Finally, pursuant to Vaccine Rule 13(a)(3), “[t]he failure of respondent to identify with particularity any objection to a request for attorney’s fees and costs may be taken into consideration by the special master in the decision.” Here, respondent has not raised any objection with particularity.

Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs.

Accordingly, the undersigned awards a lump sum of $75,449.61, representing reimbursement of attorneys’ fees and costs, to be paid through an ACH deposit to petitioner’s counsel of record, Richard Moeller’s IOLTA account for prompt disbursement.

The clerk of the court shall enter judgment in accordance herewith.3 IT IS SO ORDERED. s/Daniel T. Horner Daniel T. Horner Special Master