Tully v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 25-0184V

WENDY TULLY,

Chief Special Master Corcoran Petitioner, Filed: July 7, 2026 v. SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

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

Joseph Douglas Leavitt, U.S. Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEY’S FEES AND COSTS 1 On January 30, 2025, Wendy Tully 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 vaccination she received on October 18, 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. 2023. Petition, ECF No. 1. On April 9, 2026, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 23.

Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $17,586.31 (representing $16,107.60 in fees plus $1,478.71 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed May 19, 2026, ECF No. 28. Furthermore, counsel for Petitioner represents that no personal out-of-pocket expenses were incurred. ECF No. 28 at 1.

Respondent reacted to the motion on June 1, 2026, indicating 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. Respondents’ Response to Motion at ECF No. 29. Also, on June 1, 2026, Petitioner filed a reply to Respondents’ Response requesting that the amount of fees and costs in the Motion be awarded. ECF No. 30.

I have reviewed the billing records submitted with Petitioner’s request and find a reduction in the amount of attorney fees to be awarded appropriate, for the reasons listed 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

The rates requested for attorney work performed through 2024 are reasonable and consistent with our prior determinations and are therefore awarded herein. The rates requested for work performed in 2025 and 2026 by attorney Alexi Velez require adjustment.

Petitioner requests the hourly rate of $510.00 for 2025 work performed by attorney Alexi Velez. Although the proposed rate falls within the experience range provided in OSM’s recently updated Fee Schedules 3 for similarly-situated attorneys, I find the specifically-requested rate to be excessive. Based on my experience applying the factors relevant to determining proper hourly rates for Program attorneys 4 and commensurate with her experience in the Vaccine Program, a rate of $455.00 per hour is more appropriate for time billed by Ms. Velez in 2025. Application of the foregoing reduces the amount of attorney fees to be awarded by $55.00. 5

Additionally, Alexi Velez was previously awarded a lesser rate than requested herein ($480.00 for work performed in 2026). See Derr v. Sec'y of Health & Hum. Servs., No. 23-586V, slip op. (Fed. Cl. June 18, 2026). I find no reason to deviate from that determination, 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 the 2026 rate for Alexi Velez to be consistent with Derr. Application of the foregoing reduces the amount of attorney fees to be awarded by $70.00. 6

ATTORNEY COSTS

Petitioner has otherwise provided supporting documentation for all claimed costs. ECF No. 28-2 at 2-10. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full.

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 attorneys’ fees and costs in the total amount of $17,461.31 (representing $15,982.60 in fees plus $1,478.71 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

6 This amount consists of reducing Alexi Velez’s rate for 2026 and is calculated as follows: ($550.00 - $480.00 = $70.00 x 1.0 hrs.) = $70.00.

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