In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: June 15, 2021
* * * * * * * * * * * * * * UNPUBLISHED
ARNOLD LEO COMEAU, JR., *
*
Petitioner, * No. 19-198V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Bradley S. Freedberg, Bradley S. Freedberg, P.C., Denver, CO, for Petitioner.
Emilie Williams, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES1
On February 4, 2019, Arnold Leo Comeau, Jr. (“Petitioner”) filed a petition for
compensation pursuant to the National Vaccine Injury Compensation Program2 alleging that he
Guillain-Barré syndrome as a result of an influenza vaccine he received on February 2, 2016. Pet.
at 1. On November 25, 2020, the parties filed a stipulation, which the undersigned adopted as her
decision awarding compensation on November 30, 2020. (ECF No. 29).
On March 10, 2021, Petitioner filed an application for final attorneys’ fees. (ECF No. 35).
(“Fees App.”). Petitioner requests total attorneys’ fees in the amount of $18,008.50. Fees App. at
1. Petitioner did not request reimbursement for any attorneys’ costs. Respondent responded to the
motion on April 5, 2021, stating that “Respondent is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp. at 2. (ECF No. 36).
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This
means the Ruling 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished Ruling contains a reasoned explanation for the action in this case,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 (2012) (Federal Management and Promotion
of Electronic Government Services).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
Petitioner did not file a reply thereafter.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). 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, they are eligible so long as 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, because petitioner was awarded compensation pursuant
to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs.
It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Human 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 & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). 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. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.
a. Reasonable Hourly Rates
Petitioner requests the following rates of compensation for his counsel: for Mr. Bradley
Freedberg, $484.00 per hour for work performed in 2019-2021; and for Mr. Gurney Pearsall III,
$350.00 per hour for work performed in 2020 and 2021. These rates require further discussion.
The 2019 rate requested for Mr. Freedberg is unreasonable because it exceeds the
maximum amount prescribed by the OSM Attorneys’ Forum Hourly Rate Fee Schedule for 2019
and because it exceeds what Mr. Freedberg has previously been awarded for his work in 2019. See
Hergett v. Sec’y of Health & Human Servs., No. 17-2008V, 2020 WL 1080295, at *3 (Fed. Cl.
Spec. Mstr. Feb. 4, 2020) (awarding Mr. Freedberg $390.00 per hour for work performed in 2019).
The undersigned agrees with the reasoned analysis by the special master in Hergett and finds that
$390.00 per hour is a reasonable hourly rate for Mr. Freedberg’s 2019 work. Concerning a
reasonable rate for 2020, Mr. Freedberg had approximately 30 years of experience in 2020 placing
him in the range of attorneys with 20-30 years of experience on the 2020 Fee Schedule. The
undersigned, in considering Mr. Freedberg’s hourly rates for previous years, has noted that his
rates should fall on the lower end of the range due to his relative lack of experience. Mackey v.
Sec’y of Health & Human Servs., No. 16-1289V, 2018 WL 3596801, at *5 (Fed. Cl. Spec. Mstr.
2
May 10, 2018). Since then, Mr. Freedberg has completed five Vaccine Program cases (inclusive
of the instant case) and while his program experience is growing, overall the undersigned finds
that a rate on the lower end of the scale is appropriate. Accordingly, the undersigned shall
compensate Mr. Freedberg’s 2020 work at $410.00 per hour. Similarly, an appropriate rate for his
work in 2021 is $455.00 per hour. Application of these hourly rates results in a reduction of
$1,768.25.3
Mr. Pearsall has been licensed to practice law since 2016, giving him approximately 4 years
of legal experience when he began work on this case in 2020 and placing him at the bottom of the
tier of attorneys with 4-7 years of experience on the OSM Fee Schedules. This appears to be Mr.
Pearsall’s first Vaccine Program case. However, Mr. Pearsall’s requested rate of $350.00 per hour
is excessive because exceeds what even the most experienced attorney in that tier could be awarded
(which is $338.00 per hour). Upon review, a reasonable rate for Mr. Pearsall would be at the low
end of the range because he has the lowest amount of experience for that tier and no demonstrated
Vaccine Program Experience. Accordingly, a reasonable hourly rate for Mr. Pearsall in 2020 is
$255.00 per hour and in 2021 is $270.00 per hour. Application of these rates results in a reduction
of $2,193.25.4
b. Reasonable Hours Expended
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 v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
The overall hours spent on this matter appear to be largely reasonable. However, a small
reduction must be made for paralegal and administrative tasks billed at attorney hours (in this case,
such tasks include faxing documents and bates stamping records). These issues are not new to Mr.
Freedberg’s fees motions. See, e.g., Hergett, 2020 WL 1080295 at *4, Mackey, 2020 WL 2596801
at *7. Upon review, a reduction of $500.00 is reasonable to offset the aforementioned issues.
Petitioner is therefore awarded final attorneys’ fees in the amount of $13,547.00.
3
2019: ($484.00 per hour requested - $390.00 per hour awarded) * 16.35 hours billed = $1,536.90.
2020: ($484.00 per hour requested - $410.00 per hour awarded) * 2.95 hours billed = $218.30.
2021: ($484.00 per hour requested - $455.00 per hour awarded) * 0.45 hours billed = $13.05.
In petitioner’s motion, petitioner notes that a total of 20.25 hours were billed by Mr. Freedberg. However,
in tabulating the hours necessary for the aforementioned reduction, the undersigned calculated a total of
19.75 hours billed by Mr. Freedberg. Mr. Freedberg is advised to take greater care in preparing his fees
motions in the future, as discrepancies in hours billed have previously been noted by other special masters
who have reviewed his fees motions. See Hergett, 2020 WL 1080295 at *4 (“After reviewing all
documentation filed by Mr. Freedberg, multiple discrepancies have been found within the billing records.”).
4
2020: ($350.00 per hour requested - $255.00 per hour awarded) * 21.15 hours billed = $2,009.25. 2021:
($350.00 per hour requested - $270.00 per hour awarded) * 2.3 hours billed = $184.00.
3
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs, other than the reductions delineated above, is reasonable. The undersigned finds that it is
reasonable to compensate Petitioner and his counsel as follows:
Attorneys’ Fees Requested $18,008.50
(Reduction to Fees) - ($4,461.50)
Total Attorneys’ Fees Awarded $13,547.00
Accordingly, the undersigned awards a lump sum in the amount of $13,547.00,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Bradley Freedberg.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).
4