In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-795V
Filed: September 12, 2016
*************************
JANET BUKSA, * Not for Publication
*
Petitioner, *
v. * Attorney’s Fees and Costs;
* Contested; Range.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent *
*
*************************
Danielle A. Strait, Maglio, Christopher, & Toale, Washington, D.C., for petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for respondent.
DECISION GRANTING ATTORNEY’S FEES AND COSTS1
Roth, Special Master:
On October 15, 2013, Janet Buksa (“Ms. Buksa” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.2 [the “Vaccine Act” or “Program”]. Petitioner alleged an influenza (“flu”) vaccine she
received on January 27, 2012 led her to develop chronic pain and inflammation in her right
shoulder. See generally Petition (“Pet.”), ECF No. 1; Petitioner’s Exhibit (“Pet. Ex.”) 16. On
January 8, 2016, respondent filed a proffer for an award of compensation (“Proffer”). The
undersigned issued a decision awarding petitioner compensation according to respondent’s
Proffer. Decision, ECF No. 58. Petitioner now seeks an award of attorney’s fees and costs in the
amount of $37,233.74, pursuant to Section 15(e) of the Vaccine Act. Motion for Attorney’s Fees
1
Because this unpublished decision contains a reasoned explanation for the action in this case, it
will be posted on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance
with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete 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 delete such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2006).
(“Motion for Fees”), ECF No. 64. After careful consideration, the undersigned has determined to
grant the request in full for the reasons set forth below.
I. Procedural History.
Petitioner filed her petition on October 15, 2013. ECF No. 1. This case was originally
assigned to Special Master Nora Beth Dorsey.3 ECF No. 2. Petitioner filed medical records via
CD on November 8, 2013, and her affidavit and statement of completion on December 18, 2013.
ECF No. 7, 8. Respondent filed her Rule 4(c) Report (“Rsp. Rpt.”) on February 14, 2014,
concluding that petitioner’s injury was appropriate for compensation. ECF No. 12. Chief Special
Master Dorsey issued a ruling on entitlement on February 18, 2014, determining that petitioner
was entitled to compensation. Ruling on Entitlement, ECF No. 13. That same day, the Chief
Special Master issued an order directing the parties to proceed to the damages phase of the case.
Damages Order, ECF No. 14.
The parties engaged in damages discussions from February 2014 until January 2016,
keeping the Court apprised of their progress through a series of status reports. ECF Nos. 17, 19,
23, 25, 28, 30, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51, and 55. Both the status reports and the
contemporaneous billing records reflect that the parties were engaged in serious and deliberate
negotiation, and were committed to resolving this matter.
This case was reassigned to me on October 19, 2015. ECF No. 53. On January 8, 2016,
respondent filed a Proffer (“Proffer”) indicating that respondent and petitioner had agreed to
compensation. Proffer, ECF No. 57. That same day, I issued a decision approving the proffer and
awarding compensation to petitioner. Decision, ECF No. 58.
Petitioner moved for attorneys’ fees and costs on July 13, 2016. Motion for Attorney Fees
and Costs (“Motion for Fees”), ECF No. 64. Petitioner requested attorneys’ fees in the amount of
$30,699.90 and costs in the amount of $6,533.84, for a total of $37,233.74. Id. Respondent
submitted her response on August 1, 2016. Response to Motion for Attorney’s Fees
(“Response”), ECF No. 65. Respondent made no specific objections to the attorneys’ hours or
rates. She merely submitted a range of $16,000 to $21,000 as appropriate fees and costs in this
matter. Petitioner did not file a reply, and thus, this matter is now ripe for decision.
II. Applicable Law.
The Vaccine Act allows Special Masters to award attorney’s fees and costs to a petitioner
if the claim was brought in good faith and with “reasonable basis.” § 15(e). This is a
discretionary determination made by the Special Master, requiring no line by line analysis.
Broekelschen v. Sec’y of HHS, 102 Fed. Cl. 719, 729 (2011). Rather, the fact finder uses a
lodestar method – multiplying a “reasonable” fee by the hours the attorney worked. Blanchard v.
Bergeron, 489 U.S. 87, 94 (1989); Schueman v. Sec’y of HHS, No. 04-693V, 2010 WL 3421956,
at *3 (Fed. Cl. Spec. Mstr. Aug. 11, 2010). While respondent does have the opportunity to object
to said amount, pursuant to the Vaccine Rules, when no justification or specific objection is
3
Special Master Dorsey was elevated to Chief Special Master on September 1, 2015.
2
proffered, her “representation carries very little weight.” Reyes v. Sec’y of HHS, No. 14-953V,
2016 WL 2979785, at *1 (Fed. Cl. Spec. Mstr. Apr. 27, 2016) (specifically when the attorneys of
record supply detailed time sheets and present a complete case).
The recent decision in McCulloch provides a framework for consideration of appropriate
ranges for attorney’s fees based on the experience of a practicing attorney. McCulloch v. Sec’y of
HHS, No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). According to
McCulloch, if an attorney has been practicing for 20 or more years, an appropriate range is
approximately $350 to $425 per hour. Id. If an attorney has 11 to 19 years of experience, $300 to
$375 is proper. Id. For 4 to 7 year years of experience, $225 to $300 is sufficient. Id. If an
attorney has fewer than 4 years of experience, he/she should receive between $150 and $225. Id.
III. Discussion.
In her response, respondent provided no specific objection to the amount requested or the
hours worked in this matter, but instead, offered a range which she believes to be reasonable to
pay the attorneys who worked on this case. Response at 3. Rather, respondent “reminded” the
Court of its discretion in awarding fees, quoting Fox v. Vice, and reiterated the fact that ‘the
determination of [attorney’s] fees “should not result in a second major litigation.”’ Response at
2-3. Respondent proceeded to claim that a “reasonable” amount for fees and costs in this case
would fall between $16,000.00 and $21,000.00, without specifically addressing how that range
applied to this particular matter.
Danielle Strait has been a practicing attorney for six years, and has been licensed in the
Court of Federal Claims since 2012. Pet. Ex. 23, ECF No. 64. She has substantial experience in
the Vaccine Program, having clerked for then-Chief Special Master Gary Golkiewicz before
beginning her practice as a petitioner’s attorney with Maglio Christopher & Toale in 2012. Id. As
an attorney with MCT, Ms. Strait has represented numerous petitioners in the Vaccine Program;
she also sits on the Vaccine Committee of the Court’s Advisory Council. Id.
In McCulloch, Special Master Gowen concluded that Ms. Strait merited an hourly rate of
$295; the billing records reflect that this is the requested hourly rate for work done from 2013 to
2015. See Pet. Ex. 21; McCulloch at Endnote 32. Petitioner has requested an hourly rate of $306
for Ms. Strait for work performed in 2016; this is simply Ms. Strait’s previous rate adjusted for
inflation, using the 3.7% inflation rate from McCulloch. McCulloch at *16. Additionally, Ms.
Strait has previously received an hourly rate of $306 for work performed in 2016. See McGinnis
v. Sec’y HHS, No. 14-15, 2016 WL 4538518 (Fed. Cl. Spec. Mstr. July 7, 2016). Based on Ms.
Strait’s experience and quality of work, I find that petitioner’s requested hourly rates of $306 for
work performed in 2016, and $295 for work performed from 2013 to 2015 to be reasonable.
After reviewing the billing records, the amount of hours billed seems reasonable and I see
no erroneous or duplicative billing. See generally Pet. Ex. 21, ECF No. 64. I therefore see no
reason to reduce petitioner’s application for fees and costs.
3
IV. Total Award Summary.
I find that petitioner’s counsel’s request is reasonable and she is entitled to the requested
fees and costs pursuant to § 15(e)(1). For the reasons contained herein, a check in the amount
of $37,233.744 made payable jointly to petitioner, Janet Buksa, and petitioner’s counsel of
record, Danielle A. Strait, for petitioner’s attorneys’ fees and costs shall be issued.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
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,” as well as fees for
legal services rendered. Furthermore, 42 U.S.C. § 300aa-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 HHS, 924 F.2d 1029 (Fed. Cir. 1991).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. See Vaccine Rule 11(a).
4