BERARD v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 27, 2026

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KENNETH BERARD, *
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Petitioner, * No. 23-1690V
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v. * Special Master Young
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SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
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Respondent. *
* * * * * * * * * * * * * * *

Wendy Cox, Siri & Glimstad, LLP, Austin, TX, for Petitioner
Madylan Louise Yarc, United States Department of Justice, Washington, DC, for Respondent

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS
1

On May 26, 2026, Kenneth Berard (“Petitioner”) filed a motion for interim attorneys’ fees
and costs, requesting a total of $94,761.18 for the work of his counsel, Wendy Cox. Pet’r’s Motion
for Interim Attorneys’ Fees & Costs (“Pet’r’s Mot.”) at 1, ECF No. 57.
2
This amount consists of
$89,938.90 in fees and $4,822.28 in costs. Id. at 3. Petitioner has not incurred any personal costs
related to the prosecution of his petition. Id. On May 27, 2026, Respondent filed his response to
Petitioner’s motion. Resp’t’s Response, ECF No. 58. In his response, Respondent stated that he
“defers to the court regarding whether the statutory requirements for an award of attorneys’ fees
and costs are met in this case.” Id. at 2. For the reasons stated below, I will award interim attorneys’
fees and costs to Petitioner’s counsel, Ms. Cox.

1
Because 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.
2
Petitioner previously filed motions for interim attorneys’ fees and costs on December 2, 2025, and
March 3, 2026. See ECF Nos. 42, 50. However, Petitioner’s most recent motion incorporates all costs
requested in her prior motions. Accordingly, I will not address Petitioner’s prior motions.
Case 1:23-vv-01690-UNJ Document 71 Filed 07/27/26 Page 1 of 5

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I. Availability of Interim Attorneys’ Fees and Costs

A. Good Faith and Reasonable Basis

Under the Vaccine Act, petitioners may recover reasonable attorneys’ fees and costs only
if “the petition was brought in good faith, and there was a reasonable basis for which the petition
was brought.” § 15(e)(1). Respondent does not object to Petitioner’s motion on the basis of good
faith or reasonable basis, and I find that the statutory criteria for an award of interim fees and costs
are met.

B. Justification for an Interim Award

In Avera, the Federal Circuit stated that a special master may award attorneys’ fees and
costs on an interim basis. Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1352 (Fed. Cir.
2008). The court noted that such awards “are particularly appropriate in cases where proceedings
are protracted, and costly experts must be retained.” Id. Similarly, the Federal Circuit held in Shaw
that it is proper for a special master to award interim attorneys’ fees “[w]here the claimant
establishes that the cost of litigation has imposed an undue hardship and that there exists a good
faith basis for the claim.” Shaw v. Sec’y of Health & Hum. Servs., 609 F.3d 1372, 1375 (Fed. Cir.
2010).

Many cases in the Program are proceeding slower than they have in the past. See Miles v.
Sec’y of Health & Hum. Servs., No. 12-254V, 2017 WL 4875816 at *5 (Fed. Cl. Spec. Mstr. Oct.
4, 2017) (“[i]t may be months to years before an entitlement ruling is issued”); Abbott v. Sec’y of
Health & Hum. Servs., No. 14-907V, 2016 WL 4151689, at *4 (Fed. Cl. Spec. Mstr. July 15, 2016)
(“The delay in adjudication, to date, is due to a steady increase in the number of petitions filed
each year.”).

An entitlement decision has not been issued, and Ms. Cox has a pending motion to
withdraw as the attorney of record in this case. See ECF No. 53. Petitioner’s fees and costs have
accumulated in the course of litigation. Petitioner submitted an itemization of attorney fees and a
summary and documentation of costs. Petitioner’s counsel requested a total of $91,227.86 in fees
and expenses, and “[i]t cannot be seriously argued that in essence loaning cases thousands of
dollars for years is not a hardship.” Kirk v. Sec’y of Health & Hum. Servs., No. 08-241V, 2009
WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009). Because of the protracted nature of the
proceedings, and the fact that Ms. Cox will withdraw as counsel and no longer be on the case, I
find an award of interim attorneys’ fees and costs reasonable and appropriate for her work
completed in this case.

II. Reasonable Attorneys’ Fees

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and
costs under the Vaccine Act. Avera, 515 F.3d at 1348. This is a two-step process. Id. First, a court
determines an “initial estimate . . . by ‘multiplying the number of hours reasonably expended on
the litigation times a reasonable hourly 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.

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It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Hum. Servs., 22 Cl. Ct. 750, 753 (1991) (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys’ fees and
costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec’y of Health & Hum. Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however,
should not include hours that are “excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d
at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. at 895 n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable. Id.

A. Hourly Rate

The decision in McCulloch provides a framework for consideration of appropriate ranges
for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of
Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), mot. for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The Office
of Special Masters has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate
Fee Schedules from 2015 to 2026 can be accessed online.
3

Petitioner requests the following hourly rates for the work of his counsel: for Ms. Wendy
Cox, $390.00 per hour for work performed in 2023, $430.00 per hour for work performed in 2024,
$450.00 per hour for work performed in 2025, and $551.00 per hour for work performed in 2026;
for Ms. Jessica Wallace, $275.00 per hour for work performed in 2022, $285.00 per hour for
worked performed in 2023, and $359.00 per hour for work performed in 2025; and for Ms. Alison
Haskins, $510.00 per hour for work performed in 2024 and $525.00 per hour for worked performed
in 2025. Petitioner also requests rates between $174.00 and $227.00 per hour for work performed
by his counsel’s paralegals between 2022 and 2026.

I find that Ms. Cox’s 2023–2025 rates, Ms. Wallace’s 2022–2025 rates, Ms. Haskins’
2024–2025 rates, and the rates requested for Petitioner’s counsel’s paralegals are reasonable and
in accordance with what these attorneys have previously been awarded for their Vaccine Program
work. However, despite requesting these rates in his fees motion, the provided invoice of
attorneys’ fees accompanying Petitioner’s motion charges different rates than that requested.
Accordingly, 44.5 hours for Ms. Cox will be reduced from $430.00 per hour to $390.00 per hour
for work performed in 2023, for a total reduction of $1,780.00.
4
Further, Ms. Cox’s 2026 rate has
not yet been adjudicated in the Program. Per Ms. Cox’s declaration, filed on December 2, 2025,
she became a licensed attorney in 2005 and has continued to practice law since her licensure.
Pet’r’s Ex. 19 at 1. At the time of filing her declaration in 2025, Ms. Cox had 19 years of experience
as an attorney—as of the writing of this decision, she now has approximately 20. See id. According

3
The OSM Fee Schedules are available at: https://www.cfc.uscourts.gov/osm-attorneys-forum-hourly-rate-
fee-schedules
4
(44.5 x $430.00) – (44.5 x $390.00) = $1,780.00.
Case 1:23-vv-01690-UNJ Document 71 Filed 07/27/26 Page 3 of 5

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to the OSM Fee Schedule, attorneys with 20 to 30 years of experience may be awarded an hourly
rate between $552.00 and $655.00 per hour. Because Ms. Cox just recently garnered enough
experience to fall into this range, and because Ms. Cox requests a rate below the minimum amount
associated with her level of experience, I find this request reasonable. Accordingly, I will award
her 2026 rate in full.

B. Reasonable Number of Hours

Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley, 461
U.S. at 434). It is well-established that billing for administrative or clerical tasks is not permitted
in the Vaccine Program. 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”); see also Isom v. Sec’y of
Health & Hum. Servs., No. 94-770, 2001 WL 101459, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2001)
(agreeing with Respondent that tasks such as filing and photocopying are subsumed under
overhead expenses); Walters v. Sec’y of Health & Hum. Servs., No. 15-1380V, 2022 WL 1077311,
at *5 (Fed. Cl. Spec. Mstr. Feb. 23, 2022) (failing to award fees for the review of CM/ECF
notifications and the organization of the file); McCulloch, 2015 WL 5634323, at *26 (noting that
clerical and secretarial tasks should not be billed at all, regardless of who performs them).

Upon review, I find the overall hours billed to be mostly reasonable. Counsel provided
sufficiently detailed descriptions for the tasks performed. However, I find a reduction necessary
because there were several entries billed for filing. Further, most of the entries for filing were
included with other tasks. Because this constitutes block billing, it is impossible to discern how
much time was spent on compensable versus noncompensable tasks. Therefore, I find a 5%
reduction reasonable. This results in a reduction of $4,496.95.
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C. Costs

Similar to attorneys’ fees, a request for reimbursement of costs must be reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). When petitioners fail to
substantiate a cost item, such as by not providing appropriate documentation to explain the basis
for a particular cost, special masters have refrained from paying the cost at issue. 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).

Petitioner requests a total of $4,783.16 in attorneys’ costs. This amount is comprised of
acquisition of medical records, the Court’s filing fee, and payment to a potential expert witness.
These costs have been supported with the necessary documentation and are reasonable. I will
therefore award Petitioner’s request for costs in full.

5
$89,938.90 x 5% = $4,496.95.
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III. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2018), I award Petitioner
the following in interim attorneys’ fees and costs:

Interim Attorneys’ Fees Requested $89,938.90
(Reduction) -$6,276.95
Interim Attorneys’ Fees Awarded $83,661.95

Interim Costs Requested $4,822.28
(Reduction) -$0.00
Interim Costs Awarded $4,822.28
Total Amount Awarded $88,484.23

Accordingly, I award a lump sum in the amount of $88,484.23, representing
reimbursement for Petitioner’s attorneys’ fees and 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 SHALL ENTER JUDGMENT in accordance with the terms of the above decision.
6

IT IS SO ORDERED.

s/Herbrina D. S. Young
Herbrina D. S. Young
Special Master

6
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice
renouncing the right to seek review.
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