Fernandez v. Secretary of Health and Human Services
CourtUnited States Court of Federal Claims
Date FiledSeptember 21, 2026
Docket21-0252V
JudgeChristian J. Moran
StatusPublished
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Full Opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
KEVIN FERNANDEZ, *
as administrator of the estate of *
Salvador Fernandez, *
* No. 21-252V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: August 19, 2026
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
**********************
Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for
petitioner;
Madelyn Weeks, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Kevin Fernandez’s motion for final
attorneys’ fees and costs. He is awarded $32,440.94.
1
Because this published decision contains a reasoned explanation for the action in this
case, the undersigned is required to post it on the United States Court of Federal Claims' website
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 posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 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, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access.
I. Procedural History
On January 7, 2021, Norys Fernandez,2 as power of attorney of Salvador
Fernandez (“Mr. S. Fernandez”), filed a petition for compensation under the
Nation Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34,
alleging that the influenza (“flu”) vaccine Mr. S. Fernandez received on September
27, 2018, caused him to suffer from Guillain-Barré Syndrome (“GBS”). On March
20, 2025, the parties filed a joint stipulation which the undersigned adopted as his
decision on March 21, 2025. 2025 WL 1105557.
On October 20, 2025, petitioner filed a motion for attorneys’ fees and costs
(“Fees App.”). Petitioner requests attorneys’ fees in the amount of $27,307.00, and
attorneys’ costs in the amount of $6,474.14, for a total request of $33,781.14. Fees
App. at 2. Petitioner warrants that he personally did not incur any costs related to
the prosecution of this case. Fees App. Ex. C. On October 27, 2025, respondent
responded to petitioner’s motion with his boilerplate response. Respondent argues
that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Id. at 2. Additionally, he recommends “that the Court exercise its
discretion” when determining a reasonable award for attorneys’ fees and costs. Id.
at 4. On August 7, 2026, petitioner filed additional documentation to support
expert costs.
II. Reasonable Amount of Attorneys’ Fees and Costs
Because petitioner received compensation, he is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether the requested amount is reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
2
On February 18, 2024, Mr. S. Fernandez passed away from causes unrelated to his
vaccine injury. Thereafter, Kevin Fernandez was appointed as administrator of the estate of Mr.
S. Fernandez. Mr. Kevin Fernandez (“Mr. K. Fernandez” or “petitioner”) is now the legal
petitioner in this matter.
2
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018).
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates of compensation for his attorney, Mr.
Lawrence Cohan: $450.00 per hour for work performed in 2019, $470.00 per hour
for work performed in 2020, $484.00 per hour for work performed in 2021,
$505.00 per hour for work performed in 2022, $553.00 per hour for work
performed in 2023, $584.00 per hour for work performed in 2024, and $614.00 per
hour for work performed in 2025. Fees App. at 1. For paralegal Leah Amen,
petitioner requests the following rates: $135.00 per hour for work performed in
2018, $145.00 per hour for work performed from 2019-2021, $155.00 per hour for
work performed in 2022, $170.00 per hour for work performed in 2023, $197.00
per hour for work performed in 2024, and $214.00 per hour for work performed in
2025. The rate requested for Ms. Amen for 2025 requires an adjustment. The
amount requested for Ms. Amen in 2025 is $2.00 greater than the maximum rate
allowed for any Program paralegal as set forth in the OSM Attorneys’ Forum
3
Hourly Rate Fee Schedule.3 Petitioner is instead awarded $212.00 per hour for the
work performed by Ms. Amen in 2025. This results in a reduction of $9.20.4
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable. Nevertheless, after reviewing the submitted billing statement, the
undersigned finds that the overall hours spent on this matter requires reduction.
Petitioner’s counsel billed for some administrative or clerical tasks. It is well
known in the Vaccine Program that billing for some administrative tasks (e.g.,
filing), even at a paralegal rate, is not permitted. See, e.g., Rochester v. United
States, 18 Cl. Ct. 379, 387 (1989) (stating that services that are “primarily of a
secretarial or clerical nature ... should be considered as normal overhead office
costs included within the attorneys’ fee rates”). Attorneys may not charge for
clerical tasks because the attorney’s hourly rate reflects overhead expenses, such as
employing a secretary. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989);
Bennett v. Dep’t of Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983); Guy v. Sec’y
of Health & Human Servs., 38 Fed. Cl. 403, 407-08 (1997).
The dichotomy between paralegal activities (billable) and clerical activities
(non-billable) is often announced. However, a general principle to differentiate
them is somewhat elusive. To qualify as a paralegal, a person needs special
training and experience. See Impresa Construzioni Geom. Demenico Garufi v.
United States, 100 Fed. Cl. 750, 768 (2011); see also Pressly v. United States, No.
18-1964, 2025 WL 1780947, at *12 (Fed. Cl. May 12, 2025). Thus, one way to
categorize whether activities can be billed is to ask whether the activity required
special skills.
In this case, Petitioner’s counsel billed multiple entries for clerical activities.
For example, receiving, saving, performing OCR, and bates stamping documents,
and filing documents in CM/ECF. See Fees App. Ex. A at 3-4, 6-12, 14. However,
these activities do not require any special training, and are thus considered clerical
3
OSM Attorneys’ Forum Hourly Rate Fee Schedules,
https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules (last visited July
28, 2026).
4
This amount is calculated as: ($214 - $212) x 4.6 hours = $9.20.
4
tasks. To be clear, there is no prohibition against performing clerical tasks; some
clerical tasks, such as filing documents, are essential. However, the employment
of the person who can perform clerical tasks is built into the attorneys’ high hourly
rate as part of overhead. See Pickens v. Sec’y of Health & Human Servs., No. 17-
187V, 2020 WL 414442 at *4 (Fed. Cl. Spec. Mstr. Jan. 9, 2020) (denying motion
for review of a decision reducing attorneys’ fees and stating “legal training is not
required to notify the Court that a document is being filed”). Approximately 8.1
hours were billed for these clerical tasks; this results in a reduction of $1,331.00.
Petitioner is therefore awarded final attorneys’ fees of $25,966.80.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$6,474.14 in attorneys’ costs. See Fees App. at 2. These costs are comprised of
acquiring medical records, the Court’s filing fee, postage and life care planner
services provided by Roberta Hurley. See Fees App. Ex. B.
Ms. Hurley billed a flat $2,000.00 retainer, in addition to travel expenses
related to the site visit. Fees App. Ex. B at 19, 21-32. No contemporaneous billing
records were submitted to support Ms. Hurley’s billing; however, she did submit a
letter explaining her billing practices. Ms. Hurley explained that she charges a
different retainer for each service, and for life care planning services provided in
this case, she estimates that she spent approximately 14 hours preparing for the site
visit, including “reading files and following up on any information we need before
the site visit.”
Under the Vaccine Program’s practice guidelines, an “expert’s services must
be identified with particularity in contemporaneous, dated records indicating the
amount of time spent on each task.” See Guidelines for Practice Under the
National Vaccine Injury Compensation Program at 75-78. Additionally, “the
particular tasks for which fees are claimed, the amount of time spent on that task,
the person who performed the task, and that person’s billed hourly rate must be
identified in contemporaneous, dated records.” Id. Petitioner’s counsel must
provide sufficient evidence to warrant approval of an expert’s hourly rate. See
Vogler v. Sec’y of Health & Human Servs., No. 11-424V, 2013 WL 1635860, at
*2 (Fed. Cl. Spec. Mstr. Mar. 24, 2013). This is true even if an expert is only paid
a retainer fee. Although Ms. Hurley did not provide detailed billing records, the
undersigned finds that the amount she billed for her services was reasonable and
will award it in full. Counsel is cautioned that a future failure to provide
5
contemporaneous billing records for expert services could result in a reduction or
denial of compensation for those costs.
The undersigned has reviewed all of the costs and finds them to be
reasonable. Respondent did not object to the costs sought. Accordingly, the
attorneys’ costs shall be fully reimbursed. Petitioner is therefore awarded final
attorneys’ costs in the amount of $6,474.14.
III. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, the undersigned awards attorneys’ fees and
costs as follows: a lump sum of $32,440.94 (representing $25,966.80 in attorneys’
fees and $6,474.14 in attorneys’ cost incurred costs) to be paid through an ACH
deposit to petitioner’s counsel’s IOLTA account for prompt disbursement.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.5
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
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.
6