In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: May 30, 2017
No. 12-776V
*************************
JAMIE LEE STEWART *
* UNPUBLISHED OPINION
Petitioner, *
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Petitioners’ Costs;
* Special Master’s Discretion
Respondent. *
*
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Isaiah Kalinowski, Maglio Christopher and Toale, PA (DC), Washington, DC for petitioner.
Ryan Pyles, U.S. Department of Justice, Washington, DC for respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On November 14, 2012, Jamie Lee Stewart (“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 alleges that as a result of an influenza
(“flu”) vaccine administered on or about October 5, 2010, he developed chronic inflammatory
demyelinating polyneuropathy (“CIDP”). Stipulation at ¶ 4. On January 18, 2017, the
undersigned issued a decision awarding compensation to petitioners based on the parties’ joint
stipulation. ECF No. 73.
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision 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). In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
she will delete such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter,
for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of
42 U.S.C. § 300aa (2012).
1
On May 16, 2017, petitioner filed a Motion for Attorneys’ Fees and Costs (“Petitioner’s
Motion”). ECF No. 77. Petitioner requests attorneys’ fees in the amount of $63,004.05 and
attorneys’ costs in the amount of $10,693.64, for a total of $73,697.69. Id. On May 16, 2017,
petitioner filed his signed statement consistent with General Order #9 that he incurred no costs
related to the prosecution of this claim and that he paid no retainer to his counsel. Petitioner’s
Motion, Tab 3.
On May 16, 2017, respondent filed a Response to Petitioner’s Motion (“Respondent’s
Response”). ECF No. 78. Respondent states he is “satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” Id. at 2. He “respectfully recommends
that the Special Master exercise his discretion and determine a reasonable award for attorneys’
fees and costs.” Id. at 3. Petitioner filed a reply (“Petitioner’s Reply”) on May 16, 2017, arguing
that respondent’s position regarding petitioner’s fees and costs is overly burdensome on the
Court and prejudices petitioner. ECF No. 79. Petitioner also argued that he met his burden of
establishing reasonable fees and costs and that respondent has not offered any relevant evidence
or persuasive argument in opposition. Id. at 3.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42
U.S.C. § 300aa—15(e)(1). A petitioner need not prevail on entitlement to receive a fee award as
long as petitioner brought the claim in “good faith” and with a “reasonable basis” to proceed. Id.
In the present case, petitioner was awarded compensation pursuant to a joint stipulation
agreement and is therefore entitled to an award of reasonable attorneys’ fees and costs. Special
Masters have “wide discretion in determining the reasonableness” of attorneys’ fees and costs.
See Perreira v. Sec’y of Health and Human Servs., 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375
(Fed. Cir. 1994); see also Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1519 (Fed.
Cir. 1993) (“Vaccine program special masters are also entitled to use their prior experience in
reviewing fee applications”).
a. Attorneys’ Fees
The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys' fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, the 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. With regard to determining reasonable hourly rates, the undersigned recently conducted a
thorough analysis to determine appropriate hourly rates for work performed in the Program
during 2015. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015). McCulloch has been endorsed by all current special
2
masters. The Office of Special Masters has issued a fee schedule which updates the McCulloch
rates, to account for inflation in subsequent years, which may be found on the court’s website.3
Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316–18 (2008). Counsel should not include in their fee request hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d 1517 at 1521 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master's
discretion to reduce the hours to a number that, in his experience and judgment, [is] reasonable
for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua
sponte, apart from objections raised by respondent and without providing petitioners with notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (Fed. Cl. 2009). A special master need not engage in a line-by-line analysis of petitioner's
fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 729 (Fed. Cl. 2011). Just as “[t]rial court 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 (citing Farrar v. Sec'y of Health & Human Servs., 1992
WL 336502 at * 2-3 (Cl. Ct. Spec. Mstr. Nov. 2, 1992)).
i. Reasonable Hourly Rate
Petitioner requests the following hourly rates:
2012 2013 2014 2015 2016 2017
Isaiah $325 $325 $333 $341 $349 $358
Kalinowski
Law Clerk N/A N/A N/A N/A N/A $145
Paralegals $95 $95 $135 $105 $135 $145
$105 $135 $145 $135
$135 $145
Petitioner’s Motion, Tab 1 at 24.
The 2012-2014 requested rates for Isaiah Kalinowski are consistent with the ruling in
O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL 2399211 (Fed. Cl. Spec.
Mstr. Apr. 28, 2015), which analyzed the rates for Maglio Christopher and Toale specifically.
Mr. Kalinowski’s requested rates for 2015-2016 are consistent with an attorney of his experience
3
See Office of Special Masters – Attorneys’ Forum Hourly Rate Fee Schedule: 2015-2016 &
2017, available at http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters (last
accessed May 30, 2017).
3
in the McCulloch decision, which stated that “Mr. Kalinowski [has] substantial concentrated
vaccine experience.” His requested rates for 2017 are consistent with the Office of Special
Masters fee schedule, which updates the McCulloch rates to account for inflation in subsequent
years. The requested rate for work performed by a law clerk in 2017 is also consistent with
McCulloch, which sets the rate for law clerks at $145. Petitioner requests rates ranging from
$95-$145 for work performed by paralegals, depending on their “training, experience, and
certification.” Petitioner’s Motion, Tab 4. These paralegal rates are also consistent with the
rates laid out in McCulloch. Accordingly, the undersigned finds that petitioner’s requested rates
are reasonable.
ii. Hours Expended
Petitioner requests compensation for 160.8 hours entered by Mr. Kalinowski, 3.1 hours
by a law clerk, and 61.8 hours entered collectively by paralegals. Petitioner’s Motion, Tab 1 at
24. Petitioner submitted billing logs listing the date, the amount of time expended, the individual
billing, and the nature of each task. Petitioner’s Motion, Tab 1. Based on the lack of objection
from respondent and a thorough review of Petitioner’s Motion, the undersigned find that the
hours expended are reasonable and the total of $63,004.05 in attorneys’ fees should be awarded
in full.
b. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total
of $10,693.64 in attorneys’ costs. Petitioner’s Motion at 2. The requested costs consist intra
alia, of the filing fee, costs for obtaining medical records, mediation costs, and costs for travel
and meals during mediation. See generally Petitioner’s Motion, Tab 2. Based on a review of the
submitted expenses, the undersigned finds that attorneys’ costs are reasonable and should be
awarded in full.
II. Total Award Summary
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
undersigned has reviewed counsel’s time records and tasks performed, and finds them
reasonable. Petitioner’s counsel submitted receipts for his expenses, which the undersigned has
also reviewed and finds reasonable. See generally Petitioner’s Motion.
Based on the reasonableness of petitioner’s request and the lack of opposition from
respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs. The
undersigned awards fees and costs as follows:
Attorneys’ Fees Awarded $63,004.05
Attorneys’ Costs Awarded $10,693.64
Total Attorneys’ Fees and Costs Awarded $73,697.69
4
Accordingly, the undersigned awards attorneys’ fees and costs as follows:
1) A lump sum in the amount of $73,697.696, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to petitioner, Jamie
Lee Stewart, and his counsel, Maglio Christopher & Toale, PA, which should be
forwarded to:
Maglio Christopher & Toale, PA
1605 Main Street, Suite 710
Sarasota, Florida 34236.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
Court SHALL ENTER JUDGMENT in accordance with this decision.7
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
6
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., 924 F.2d 1029 (Fed. Cir. 1991).
7
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice not to seek review.
5