In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                         Filed: January 22, 2018

* * * * * * * * * * * * * * * * * * *
NOEMI FRETTE, on behalf of her      *                                   UNPUBLISHED
minor child N.F.,                   *
                                    *                                   No. 14-1105V
                  Petitioner,       *
v.                                  *                                   Special Master Gowen
                                    *
SECRETARY OF HEALTH                 *                                   Attorneys’ Fees and Costs;
AND HUMAN SERVICES,                 *                                   Denial of Entitlement; Reasonable
                                    *                                   Basis; Special Master’s Discretion.
                  Respondent.       *
                                    *
* * * * * * * * * * * * * * * * * * *

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Darryl R. Wishard, United States Department of Justice, Washington, DC, for respondent.

                        DECISION ON ATTORNEYS’ FEES AND COSTS1

        On November 13, 2014, Noemi Frette (“petitioner”) filed a petition on behalf of her
minor child, N.F., under the National Vaccine Injury Compensation Program (the “Vaccine Act”
or the “Vaccine Program”).2 Petitioner alleged that as a result of receiving a diphtheria-tetanus-
acellular pertussis (“DTaP”) vaccine on April 2, 2013, N.F. suffered injuries that were
subsequently diagnosed as epilepsy, with onset occurring within approximately one week.
Respondent filed a Rule 4(c) report recommending against compensation, in part because he
disputed the alleged onset. After the parties filed reports from their respective experts in
pediatric neurology and they were offered a hearing date, the parties agreed and requested that
entitlement should be determined without a hearing. On December 29, 2017, I issued a decision
denying entitlement. Decision (ECF No. 44).

1
  Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a
reasoned explanation for the action in this case, I intend 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. Before the decision
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 decision.” 

party files a motion for redaction within 14 days, the decision
will be posted on the court’s website without any changes. 

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-10 to 34 (2012).
All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa.
        On January 12, 2012, petitioner filed an application for attorneys’ fees and costs.
Petitioner’s (“Pet.”) Application (“App.”) (ECF No. 45). The application provides that petitioner
does not intend to appeal the entitlement decision. It provides that petitioner did not pay any
expenses associated with the pursuit of this claim and that all expenses were borne by her
counsel, pursuant to General Order No. 9. Petitioner requests $38,741.00 in attorneys’ fees and
$6,131.99 in attorneys’ costs, for a total request of $44,872.99 for attorneys’ fees and costs.

        On January 16, 2018, respondent filed a response to petitioner’s application for attorneys’
fees and costs. Respondent’s (“Resp.”) Response (ECF No. 46). Respondent is satisfied that the
statutory requirements for an award of attorneys’ fees and costs are met in this case. Respondent
respectfully recommends that I exercise my discretion and determine whether an award for
attorneys’ fees and costs is warranted in this case, and if so, determine a reasonable amount. 

Petitioner’s counsel informally informed my law clerk that petitioner does not intend to file
a reply. The matter is now ripe for adjudication.

        Under the Vaccine Act, the special master may award reasonable attorneys’ fees and
costs for a petition that does not result in an award of compensation, but otherwise establishes
that the petition was filed in good faith and with a reasonable basis. 42 U.S.C. § 300aa-15(e) (1).
I find no cause to doubt the good faith or reasonable basis of bringing this claim, which, even
though not successful, was supported by several fact witnesses’ signed statements and competent
expert opinions. Additionally, respondent has not objected to the good faith or reasonable basis
of the claim. Accordingly, I find that petitioners are entitled to an award of reasonable attorneys’
fees and costs.

        Based on my experience and my review of the motion and supporting documentation, the
request appears reasonable. The majority of the requested hourly rates are consistent with my
decision in McCulloch v. Sec’y of Health & Human Servs., No. 9-293v, 

(Fed.
Cl. Spec. Mstr. Sept. 1, 2015); the Office of Special Masters’ fee schedule; and my previous
decisions awarding attorneys’ fees to Mr. Downing and his staff. I find that they are reasonable
and should also be awarded in this case.3 Neither do I find cause to adjust the time expended or
the costs, which are well-documented. Thus, the requested attorneys’ fees and costs should be
awarded in full.

    In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is
GRANTED. Accordingly, I award the following:




3
 Petitioner’s application for attorneys’ fees and costs provides that on January 1, 2018, Mr. Downing and his
associate Ms. Courtney Van Cott implemented rate increases which are purportedly consistent with the annual
growth rate contemplated in McCulloch and within the applicable hourly rate ranges for those individuals. Pet. App.
at 3. The application does not include any further discussion of the reasonableness of these rates. Additionally, the
application only contains one time entry in 2018 by Mr. Downing and none by Ms. Van Cott. Thus, this decision
does not constitute a determination as to whether the 2018 rates are reasonable.



                                                          2
    1) A lump sum in the amount of $44,872.99 (representing reimbursement for
       attorneys’ fees and costs), in the form of a check made payable jointly to petitioner
       and her counsel, Andrew D. Downing of Van Cott & Talamante, PLLC. 4

       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/Thomas L. Gowen
                                                                         Thomas L. Gowen
                                                                         Special Master




4
  This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by
the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore, § 15(e)(3)
prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 

(Fed. Cir. 1991).
5
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ separately or jointly filing notice
renouncing their right to seek review.




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