VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_24-vv-00249
Package ID: USCOURTS-cofc-1_24-vv-00249
Petitioner: B.A.
Filed: 2024-02-16
Decided: 2026-03-12
Vaccine: DTaP
Vaccination date: 2022-08-15
Condition: encephalitis and an accompanying seizure disorder
Outcome: compensated
Award amount USD: 16201

AI-assisted case summary:
Michaela Avila, on behalf of her minor child B.A., filed a petition in the National Vaccine Injury Compensation Program on February 16, 2024. She alleged that B.A. developed encephalitis and a seizure disorder as a result of the DTaP vaccine he received on August 15, 2022. This decision addresses a motion for interim attorneys' fees and costs filed by the petitioner. The court found that the petition was filed in good faith and had a reasonable basis, supported by documentation. The petitioner requested $15,776.50 in attorneys' fees and $425.16 in costs, totaling $16,201.66. The court granted the motion, awarding the requested amount in interim attorneys' fees and costs. The decision notes that the case has been pending for nearly one year and that the motion was necessitated by the withdrawal of the petitioner's former counsel. The award is to be paid through an ACH deposit to the former counsel's IOLTA account.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_24-vv-00249-0
Date issued/filed: 2026-03-12
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 08/21/2025) regarding 40 DECISION of Special Master - Interim Attorney's Fees. Signed by Special Master Thomas L. Gowen. (jjr) Service on parties made.
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Case 1:24-vv-00249-UNJ Document 55 Filed 03/12/26 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: August 21, 2025
* * * * * * * * * * * * *
MICHAELA AVILA, on behalf of *
her minor child, B.A., *
*
*
Petitioner, * No. 24-249V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Andrew D. Downing, Downing, Allison, & Jorgenson, Phoenix, AZ, for petitioner.
Christopher Pinto, U.S. Dept. of Justice, Washington, D.C., for respondent.
DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1
On December 23, 2024, Michaela Avila, on behalf of her minor child, B.A.,
(“petitioner”) filed a motion for interim attorneys’ fees and costs. Interim Fees Motion (“Int.
Mot.”) (ECF No. 20). For the reasons set forth below, I hereby GRANT petitioner’s motion and
award $16,201.66 in interim attorneys’ fees and costs.
I. Procedural History
Petitioner filed her petition in the National Vaccine Injury Compensation Program (“the
program”) on February 16, 2024. Petition (ECF No. 1). 2 Petitioner alleged her son B.A.
developed encephalitis and an accompanying seizure disorder as a result of the DTaP vaccine he
1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s website,
each party has 14 days to file a motion requesting redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). “An objecting party must provide the court with a proposed redacted version of the (opinion).”
Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the court’s website
without any changes. Id.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to 34 (2012)
(“Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42 U.S.C. § 300aa of the Act.

Case 1:24-vv-00249-UNJ Document 55 Filed 03/12/26 Page 2 of 5
received on August 15, 2022. Id. The sworn statement of Ms. Avila was filed as were the
medical records of her child B.A. Pet’r Ex. 1. On December 26, 2024, petitioner filed a
Consented Motion to Substitute her attorney.
Petitioner filed the instant motion requesting $15,776.50 in interim attorneys’ fees and
$425.16 in attorneys’ costs, totaling $16,201.66 in relation to the work performed by her former
counsel, Mr. Andrew Downing. Int. Mot. Respondent filed a response to petitioner’s motion for
interim fees and costs, noting that “respondent defers to the special master to determine whether”
petitioner meets the legal standard for an interim fees and costs award. Resp’t Resp. to Int. Mot.
at 2.
The matter is now ripe for adjudication.
II. Entitlement to Attorneys; Fees and Costs
A. Legal Standard
The Vaccine Act provides that reasonable attorney’s fees and costs “shall be awarded”
for a petition that results in compensation. §15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” §15(e)(1). The Federal Circuit has reasoned that in formulating this
standard, Congress intended “to ensure that vaccine injury claimants have readily available a
competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d
1358, 1362 (Fed. Cir. 2012).
Petitioners act in “good faith” if they filed their claims with an honest belief that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL
4410030, at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). In this case, respondent does not contest
that this petition was filed in good faith. Further, petitioner has a belief that the DTaP vaccine
B.A. received caused him to develop encephalitis and an accompanying seizure disorder.
To receive an award of fees and costs, a petitioner must also demonstrate the claim was
brought with a reasonable basis through objective evidence supporting “the claim for which the
petition was brought.” Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632 (Fed. Cir.
2017); see also Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 286 (2014)
(citing McKellar v. Sec’y of Health & Human Servs., 101 Fed Cl. 297, 303 (2011)). In the
instant case, I find that there is reasonable basis to award petitioner reasonable interim attorneys’
fees and costs based on the supporting documentation filed by petitioner.
B. Interim Awards
The Vaccine Act permits interim attorneys’ fees and costs. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008); Shaw v. Sec’y of Health & Human Servs.,
609 F.3d 1372 (Fed. Cir. 2010). In Shaw, the Federal Circuit held that it was proper to grant an
interim award when “the claimant establishes that the cost of litigation has imposed an undue
hardship.” 609 F.3d at 1375. In Avera, the Federal Circuit stated that “[i]nterim fees are
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Case 1:24-vv-00249-UNJ Document 55 Filed 03/12/26 Page 3 of 5
particularly appropriate in cases where proceedings are protracted, and costly experts must be
retained.” 515 F.3d at 1352. I generally defer ruling on an interim fee application if: the case has
been pending for less than 1.5 years (measured from the date of filing); the amount of fees
requested is less than $30,000; and/ or the aggregate amount of expert costs is less than $15,000.
If any one of these conditions exists, I generally defer ruling until these thresholds are met or
until an entitlement hearing has occurred. These are, however, only informal requirements, and
there are ultimately many factors bearing on the merit of an interim fee application. I evaluate
each one on its own merits.
In this case, petitioner requests a total of $16,201.66 in attorneys’ fees and costs, which is
below the threshold amount described above. This case has been pending for nearly one year.
However, petitioner filed the instant motion due to Mr. Downing’s withdrawal from the case and
from representation in all Program cases. Accordingly, I find that an award of interim attorneys’
fees and costs is appropriate.
III. Reasonable Attorneys’ Fees and Costs
A. Legal Standard
As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs.
The Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar approach, a
court first determines “an initial estimate of a reasonable attorneys’ fee by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at
1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an
upward or downward departure from the initial calculation of the fee award based on other
specific findings. Id. at 1348. Although not explicitly stated in the statute, the requirement that
only reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of
Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).
Special masters have “wide discretion in determining the reasonableness of both
attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).
They may look to their experience and judgment to reduce the number of hours billed to a level
they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d
1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.
Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,
988 F.2d 131 (Fed. Cir. 1993 (per curiam).
The petitioner “bea[rs] the burden of establishing that the hours expended, the rates
charged, and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof
of the claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1.
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 v. Eckerhart, 461 U.S. 424, 434 (1983).
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Case 1:24-vv-00249-UNJ Document 55 Filed 03/12/26 Page 4 of 5
B. Hourly Rate
The interim fee decision in McCulloch provides a framework for consideration of
appropriate ranges for attorneys' fees based upon an individual’s experience. McCulloch v. Sec’y
of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The
Court has since updated the McCulloch rates. The Attorneys Forum Hourly Rate Fee Schedules
for 2018-2024 can be accessed online.
Petitioner requests a total of $15,776.50 in attorneys’ fees for work performed by his
attorney, Mr. Andrew Downing, as well as work performed by attorneys Ms. Ann Allison and
Ms. Courtney Jorgenson. Petitioner also requests attorneys’ fees for work performed by
paralegals, Ms. Danielle Avery, Ms. Samantha Perez, and Mr. Alex Malvick. Petitioner requests
the following rates for work performed by the above persons in 2024: $485.00 per hour for Mr.
Downing; $435.00 per hour for Ms. Allison; $375.00 per hour for Ms. Jorgenson; and $175.00
per hour for Ms. Avery, Mr. Perez, and Mr. Malvick. Petitioner requests the following rates for
work performed by the above persons in 2023: $445.00 per hour for work performed by Mr.
Downing; $415.00 per hour for work performed by Ms. Ann Allison; $345.00 per hour for work
performed by Ms. Jorgenson; and $155.00 per hour for work performed by Ms. Avery and Mr.
Malvick. These rates are consistent with the Forum Hourly Rate Schedule as well as with what
has previously been awarded for each individual, and I find them to be reasonable for the work
performed in the instant case.
C. Hours Expended
As previously noted, a line-by-line evaluation of the fee application is not required and
will not be performed. Wasson, 24 Cl. Ct. at 484. Rather, I may rely on my experience to
evaluate the reasonableness of hours expended. Id. Just as “[t]rial courts routinely use their prior
experience to reduce hourly rates and the number of hours claimed in attorney fee requests ….
[v]accine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.
After review of the submitted billing statement, I find that the overall hours spent on this
matter are reasonable. The billing entries are reasonable and accurately describe the work
performed and the length of time it took to perform each task. See generally Int. Mot. at 15-23.
Therefore, petitioner is entitled to $15,776.50 in interim attorneys’ fees.
D. Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira, 27
Fed. Cl. Ct. 29, 34 (1992). Petitioner requests a total of $425.16 in attorneys’ costs. Int. Mot.
These costs include the cost of obtaining the hearing transcript, postage, and the cost of medical
records. In. Mot. Ex. A at 15-16. Petitioner supported her request for reimbursement of
attorneys’ costs with payment receipts. The items are typical costs associated with cases in the
Vaccine Program, and, thus, are also reasonable. Accordingly, these costs are awarded in full,
and petitioner’s counsel shall be reimbursed for a total of $425.16 in costs.
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Case 1:24-vv-00249-UNJ Document 55 Filed 03/12/26 Page 5 of 5
IV. Conclusion
In accordance with the above, I find that it is reasonable to compensate petitioner’s former
counsel, Mr. Andrew Downing, for interim fees and costs. Petitioner’s motion for interim fees
and costs is GRANTED.
Accordingly, the petitioner is awarded interim attorneys’ fees and costs in the amount
of $16,201.66, to be paid through an ACH deposit to petitioner’s former counsel, Mr.
Andrew Downing’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 forthwith.3
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
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