REISSUED FOR PUBLICATION
MAY 15 2018
OSM
U.S. COURT OF FEDERAL CLAIMS
3Jn tbe mlniteb $)tates QCourt of jfeberal QCiaims
OFFICE OF SPECIAL MASTERS
No. 16-1274V
Filed: April 6, 2018
FILED
************* * * APR - 6 2018
DAVID REPLOGLE, * UNPUBLISHED
Y.S.. COURT OF
* fff"~SRAt CLAIMS
Petitioner, *
V. * Special Master Oler
*
SECRETARY OF HEALTH * Attorneys' Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
*
************* * *
David Replogle, Loves Park, IL, prose Petitioner.
Ryan Pyles, U.S. Depaiiment of Justice, Washington, DC, for Respondent.
DECISION AWARDING INTERIM ATTORNEYS' FEES AND COSTS 1
Oler, Special Master:
On October 5, 2016, Petitioner, David Replogle, filed a petition for compensation in the
National Vaccine Injury Compensation Program ("the Program"),2 alleging that he suffered from
a Miller-Fisher variant of Guillain-Barre syndrome (GBS) due to his receipt of an influenza
vaccine on December 10, 2014. ECF No. 1 at 1. Petitioner was represented by attorney,
Danielle Strait, from the law firm of Maglio Christopher & Toale, from the date of filing of the
petition (see ECF No. 1 at 3), until January 2, 20 18, the date I granted Ms. Strait's motion to
withdraw as attorney of record (s~e ECF No. 32). Thus, as of January 2, 2018, Petitioner has
represented himself as a pro se litigant for fw.iher proceedings in this case.
Because this unpublished decision contains a reasoned explanation for the action in this
case, I intend to post this decision on the United States Comi of Federal Claims' website, in
accordance with the E-Government Act of2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule
18(b), a party has 14 days to identify and move to delete medical or other information, that
satisfies the criteria in 42 U.S.C. § 300aa-1 2(d)(4)(B). Fmiher, consistent with the rule, a motion
for redaction must include a proposed redacted decision. If, upon review, I agree that the
identified material fits within the requirements of that provision, I will delete such material from
public access.
2 National Childhood Vaccine Injury Act of 1986 ("Vaccine Act"), 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).
I. Relevant Procedural History
While Petitioner was being represented by his former counsel, Petitioner filed an Interim
Motion for Attorneys' Fees and Costs ("Interim AFC Motion") on October 9, 2017, requesting
interim attorneys' fees in the amount of$14,216.50, and $8,498.12 in costs. See Interim AFC
Motion, ECF No. 25. In accordance with General Order #9, Ms. Strait submitted a signed
affidavit with Petitioner's Interim AFC Motion, outlining her multiple attempts to contact
Petitioner to ascertain ifhe personally incurred any out-of-pocket expenses while being
represented by Ms. Strait's law firm in this case. See Ex. 10 at 3, ECF No. 25-3. That affidavit
indicates that as of October 9, 2017, the date of notary of Ms. Strait's signed statement,
Petitioner had not informed Ms. Strait of any out-of-pocket expenses incurred by Petitioner up to
that point in this case. Id. Respondent did not file a response to Petitioner's Interim AFC
Motion.
This case was transferred to my docket on December 7, 2017. ECF No. 29. This matter
is now ripe for a decision.
II. Legal Standard for Interim Attorneys' Fees and Costs
The Federal Circuit has held that an award of interim attorneys' fees and costs is
permissible under the Vaccine Act. Shaw v. Secy of Health & Human Servs., 609 F.3d 1372
(Fed. Cir. 201 O); Avera v. Secy ofHealth & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). The
Circuit has stated, "Congress made clear that denying interim attorneys' fees under the Vaccine
Act is contrary to an underlying purpose of the Vaccine Act." Cloer v. Secy ofHealth & Human
Servs., 675 F.3d 1358, 1361-62 (Fed. Cir. 2012).
In Avera, the Federal Circuit stated, "[i]nterim fees are particularly appropriate in cases
where proceedings are protracted and costly experts must be retained." 515 F.3d at 1352. In
Shaw, the Federal Circuit held that "where the claimant establishes that the cost of litigation has
imposed an undue hardship and there exists a good faith basis for the claim, it is proper for the
special master to award interim attorneys' fees." 609 F.3d at 1375. However, Avera did not
exclusively define when interim fees are appropriate, rather it has been interpreted to allow
special masters discretion. See Kirk v. Sec'y of Health & Human Servs., No. 08-241 V, 2013
WL 775396, at *2 (Fed. Cl. Spec. Mstr. Mar. 13, 2009); Bear v. Secy of Health & Human
Servs., No. 11-362V, 2013 WL 691963, at *4 (Fed. Cl. Spec. Mstr. Feb. 4, 2013). Even though
it has been argued that a petitioner must meet the three Avera criteria -- protracted proceedings,
costly expert testimony, and undue hardship -- special masters have instead treated them as
possible factors in a flexible balancing test. Avera, 515 F.3d at 1352; Al-Uffi v. Secy of Health
& Human Servs., No. 13-956V, 2015 WL 6181669, at *7 (Fed. Cl. Spec. Mstr. Sept. 30, 2015).
The undue hardship inquiry looks at more than just financial involvement of petitioner; it
also looks at any money expended by petitioner's counsel. Kirk, 2013 WL 775396, at *2
(finding "the general principle underlying an award of interim fees was clear: avoid working a
substantial financial hardship on petitioners and their counsel."). Accordingly, special masters
have routinely awarded interim fees to petitioner's original counsel when they are proceeding
through litigation with new representation. Woods v. Sec'y of Health & Human Servs., 105 Fed.
2
Cl. 148, 154 (Fed. Cl. 2012);Bear, 2013 WL691963, at *5; Lumsden v. Sec'yofHealth &
Human Servs., No. 97-588, 2012 WL 1450520, at *6 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). As
noted above, I granted Petitioner's previous counsel of record's motion to withdraw on January
2, 2018. ECF No. 32. Moreover, Petitioner's previous counsel expended costs for the services
of two medical consultants in counsel's efforts to obtain an expert opinion to support Petitioner's
Vaccine Act claim. I thus find it reasonable to award interim attorneys' fees and costs at this
juncture to avoid undue hardship for Petitioner and his previous counsel.
III. Reasonable Attorneys' Fees
a. "Good faith" and "reasonable basis" requirement
If interim fees are deemed appropriate, petitioners are eligible for an interim award of
reasonable attorneys' fees and costs ifthe special master finds that they brought their petition in
good faith and with a reasonable basis. § 15(e)(l); Avera, 515 F.3d at 1352; Shaw v. Sec'y of
Health & Human Servs., 609 F.3d 1372 (Fed. Cir. 2010); Woods, 105 Fed. Cl. at 154; Friedman
v. Sec'y of Health & Human Servs., 94 Fed. Cl. 323, 334 (Fed. Cl. 201 O); Doe 21 v. Sec'y of
Health & Human Servs., 89 Fed. Cl. 661, 668 (Fed. Cl. 2009); Bear, 2013 WL 691963, at *5;
Lumsden, 2012 WL 1450520, at *4. Respondent did not raise any objection to the good faith or
reasonable basis for the claim. Upon my review of the record, and an examination of the overall
circumstances of this case, I also agree that this case was filed in "good faith," and with a
"reasonable basis."
b. Reasonable Hourly Rates amt Time Expended
i. Requested Hourly Rates
The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes "reasonable attorneys' fees" and "other costs" under the Vaccine Act. Avera at 1349.
Under this approach, "[t]he initial estimate of a reasonable attorney's fee" is calculated by
"multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate." Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product
is then adjusted upward or downward based on other specific findings. Id.
Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apmt from objections raised by Respondent, and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec'y ofHealth & Human Servs., 86 Fed. Cl.
201, 209 (2009). Special masters 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 (2011).
A "reasonable hourly rate" is defined as the rate "prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation." Avera, 515 F.3d
at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on "the forum rate for
the District of Columbia" rather than "the rate in the geographic area of the practice of
petitioner's attorney." Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed.
3
Cir. 2011) (citing Avera, 515 F.3d at 1349). There is a "limited exception" that provides for
attorney's fees to be awarded at local hourly rates when "the bulk of the attorney's work is done
outside the forum jurisdiction" and "there is a very significant difference" between the local
hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v.
Sec'y ofHealth & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste
Mgmt. & Energy Recovery Special Serv. Dist. v. US. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).
In this case, the majority of counsel's work was performed in Washington, D.C., 3 and
thus, forum rates apply. For cases in which forum rates apply, McCulloch provides the
framework for determining the appropriate hourly rate range for attorneys' fees based upon the
attorneys' experience. See McCulloch v. Sec'y of Health & Human Servs., No. 09-293V, 2015
WL 5634323 (Fed. Cl. Spec. Mstr. Sept. I, 2015). The Office of Special Masters has accepted
the decision in McCulloch and has issued a Fee Schedule for subsequent years. 4
Ms. Strait was sworn into practice in the state of California in July 2010. See Ex. 10 at 1-
2, ii 4, ECF No. 25-3. As Ms. Strait had been practicing for seven years at the time Petitioner
submitted this instant Interim AFC Motion, the applicable range under McCulloch is $225 to
$300 for 2015 and 2016, and $230 to $307 for 2017. 5 In this instant application, Petitioner
requests Ms. Strait's hourly rates to be $306 for 2016, and $320 for 2017. Id. at 2, ii 7.
Special Master Sanders recently determined that appropriate hourly rates for Ms. Strait
for 2016 and 2017 were $300 and $307, respectively. See Schultheis v. Sec'y of Health &
Human Servs., No. 13-781, 2017 WL 2825819 (Fed. Cl. Spec. Mstr. June 5, 2017); Hogan on
beha?f ofS.MH v. Sec'y of Health & Human Servs., No. 13-780V, 2017 WL 3585648 (Fed. Cl.
Spec. Mstr. Jul. 24, 2017). I find Special Master Sanders' analysis to be well-reasoned and
persuasive, and will follow her approach in this instant fees request. Thus, Ms. Strait is awarded
the following hourly rates: $300 for work performed in 2016, and $307 for work performed in
2017.
Additionally, ten different paralegals from Ms. Strait's law firm worked on this matter
while Petitioner was being represented by Ms. Strait. See Ex. 8 at 9, ECF No. 25-1. For those
3
Ms. Strait filed a "Notice of Change of Address" on May 3, 2017, notifying the Court
that she had re-located from her firm's Washington, D.C. office to her firm's Seattle,
Washington office location. See ECF No. 15. In examining the billing records submitted with
this instant Interim AFC Motion (see Ex. 8 at 1-9, ECF No. 25-1), I note that Ms. Strait
performed 25.5 hours of attorney work from her Washington, D.C. office prior to May 3, 2017
(see id. at I-7), which constitute the majority of her total 34.50 hours billed in this case (see id. at
9).
4 The fee schedules are posted on this Court's website. See Office of Special Masters,
Attorneys' Forum Hourly Rate Fee Schedule: 2015-2016,
https ://www. uscfc. uscourts. govI sites/default/ti Jes/Attorneys-Forum-Rate-F ee-Schedul e2015-
2016.pdf (last visited April 3, 2018); see also Office of Special Masters, Attorneys' Forum
Hourly Rate Fee Schedule: 2017, https://www.uscfc.uscourts.gov/sites/default/files/Attorneys-
F orum-Rate-F ee-Schedule-2017 .pdf (last visited April 3, 2018).
5
See supra note 3.
4
paralegals, Petitioner requests a variety of hourly rates ranging from $95 to $145. Id. I find
those paralegal hourly rates to be reasonable.
ii. Total number of hours expended
Based on my review of the billing records submitted with Petitioner's Interim AFC
Motion (see Ex. 8, ECF No. 25-1), the hours expended on this matter by Petitioner's former
counsel appear to be reasonable, and I find no cause to reduce the total attorney or paralegal
hours spent o_n this case.
iii. Summmy of Total Reduction of Requested Fees
As outlined above, adjusting for Ms. Strait's hourly rates for the years 2016 and 2017
results in reducing the total fees award by $329.50. Thus, Petitioner is awarded a total of
$13,887.00 in attorneys' fees.
c. Reasonable Attorneys' Costs
Like attorneys' fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec '.Y ofHealth & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
$8,498.12 in attorneys ' costs, the bulk of which represent costs incurred by his counsel in
attempting to secure an expe1t opinion in this case. See generally Ex. 9, ECF No. 25-2. After
reviewing the costs invoices attached with Petitioner's Interim AFC Motion (id.), I find the
requested litigation costs to be reasonable, and will award them in full.
IV. Total Award Summary
Accordingly, I award $22,385.12, representing $13,887.00 in attorneys' fees and
$8,498.12 in costs, in the form of a check payable jointly to Petitioner and his fmmer counsel,
Danielle Strait. 6 The clerk shall enter judgment accordingly. 7
IT IS SO ORDERED.
Special Master
6 Pursuant to Petitioner' s former counsel's request (see Interim AFC Motion at 2, ~ 10), the
check in this case shall be forwarded to the following business address: Maglio, Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
7
Pursuant to Vaccine Rule 11 (a) , entry of judgment can be expedited by each party filing a
notice renouncing the right to seek review.
5