In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 18, 2019
* * * * * * * * * * * * * *
ANDREW BARTOSIEWICZ and *
LONYA BARTOSIEWICZ, parents*
and natural guardians of J.B.,
*
a minor, * UNPUBLISHED
*
Petitioners, * No. 17-1988V
* Special Master Gowen
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Jeffrey A. Golvash, Brennan, Robins & Daley, P.C., Pittsburgh, PA, for Petitioners.
Ryan D. Pyles, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On June 21, 2019, Andrew and Lonya Bartosiewicz (“Petitioners”) filed a motion for
attorneys’ fees and costs. Petitioners’ Motion for Attorney Fees (“Fees App.”) (ECF No. 36). For
the reasons discussed below, the undersigned GRANTS Petitioners’ motion for attorneys’ fees
and costs and awards a total of $22,988.78.
I. Procedural History
On December 20, 2017, Petitioners filed a petition in the National Vaccine Injury
1
The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This means the
ruling will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner
has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an
unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this
definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a
reasoned explanation for the action in this case, the undersigned is required to post it 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).
Compensation Program on behalf of their minor child, J.B.2 Petitioners alleged that diphtheria-
tetanus-acellular pertussis (“DTaP”) and Hepatitis A (“Hep A”) vaccines J.B. received on or about
January 12, 2015 either singly or in combination caused J.B. to develop febrile seizures and/or
encephalitis. Pet. at ¶ 2-4 (ECF No. 1). On April 9, 2019, the parties filed a stipulation, which I
adopted as my Decision awarding damages on the same day. Decision, ECF No. 30.
On June 21, 2019, Petitioners filed a motion for attorneys’ fees and costs. Petitioners
request compensation for their attorney, Mr. Jeffrey Golvash, in the total amount of $24,551.33,
representing $23,035.00 in attorneys’ fees and $1,516.33 in costs. Fees App. at 2. Pursuant to
General Order No. 9, Petitioners state that they have not personally incurred any costs related to
the litigation of this matter. ECF No. 35. Respondent reacted to the fees motion on July 2, 2019,
indicating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and recommending that “the special master exercise his discretion
and determine a reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 37).
Petitioners did not file a reply thereafter. The matter is now ripe for adjudication.
II. Analysis
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 was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). In this case, Petitioners were awarded
compensation pursuant to a stipulation, and therefore they are entitled to an award of reasonable
attorneys’ fees and costs.
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).
a. Attorneys’ Fees
Petitioners requests the following rates of compensation for their attorney, Mr. Golvash:
$300.00 per hour for all work performed in 2015-2018, and $350.00 per hour for work performed
in 2019. I find these requested rates to be reasonable and note that other special masters have also
found them reasonable as well. See Danchick v. Sec’y of Health & Human Servs., No. 17-1495V,
2019 WL 2296213 (Fed. Cl. Spec. Mstr. Mar. 28, 2019). Accordingly, no adjustment to the
requested rates is necessary.
Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter require a small reduction due to excessive time drafting routine legal documents.
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”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
2
Examples include 2.0 hours billed on 1/31/18 for preparing exhibit lists and notices of filing, 0.8
hours on 2/1/18 to prepare and file the statement of completion, 1.0 hours on 5/30/18 to prepare
and file a two page motion for extension of time, .6 hours on 6/28/19 to prepare a second motion
for extension of time, 0.8 hours on 8/22/18 to prepare and file a notice of intent to remain in the
program, and 0.5 hours on 4/19/19 to prepare and file the joint notice not to seek review. Fees App.
at 2-5. In my experience, this is an excessive amount of time billed on the preparation of simple
motions and other pro forma Vaccine Program filings.
Additionally, Mr. Golvash frequently combined multiple activities into a single billing
entry, making it difficult for me to assess the reasonableness of the time spent on each task. For
example, an entry on 5/2/18 for 1.5 hours reads “Review Respondent Status Report. Review
Scheduling order. Follow up with client regarding settlement.” Respondent’s status report was one
sentence, and the following scheduling order was routine and typical of Vaccine Program
litigation. While I can presume that the majority of the time billed was for settlement discussions
with Petitioners, billing entries such as these do not conform with the Guidelines for Practice Under
the National Vaccine Injury Compensation Program (“Guidelines”), which notes that “[e]ach task
should have its own line entry indicating the amount of time spent on that task. Lumping together
several unrelated tasks in the same time entry frustrates the court’s ability to assess the
reasonableness of the request.” Guidelines at 70.3
Accordingly, I find it reasonable to reduce the final award of attorneys’ fees by 5% to
account for excessive and block-billed entries. This results in a reduction of $1,151.75. Petitioners
are therefore entitled to final attorneys’ fees of $21,883.25.
b. Attorneys’ 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 total
attorneys’ costs in the amount of $1,516.33. Fees App. at 2. This amount is comprised of acquiring
medical records, postage, the Court’s filing fee, and several copy/scanning expenses. While
Petitioners have provided adequate documentation supporting the acquisition of medical records
and postage, I find the copying/scanning expenses are non-reimbursable. Each of these requested
costs is labeled “Copy Expense – Number and Scan” followed by the name of the medical records.
Such notation makes it unclear whether counsel seeks reimbursement for making photocopies of
the records or for scanning, although I note that the date listed for the expenses is 1/29/18, the
same date on which a billing entry was made by Mr. Golvash’s paralegal for scanning medical
records, leading to me believe the cost is for scanning documents. The Vaccine Program does not
reimburse for scanning documents because similar to faxes, there is no actual cost being incurred
other than wear and tear on the office scanner that is typically considered part of office overhead.
See Dashty v. Sec’y of Health & Human Servs., No. 15-966V, 2018 WL 6990680, at *5 (Fed. Cl.
Spec. Mstr. Nov. 21, 2018); Decker v. Sec’y of Health & Human Servs., No. 17-853V, 2019 WL
1923650, at *2 (Fed. Cl. Spec. Mstr. Apr. 11, 2019).
Accordingly, I shall reduce the final award of costs by $410.80 to account for the billed
3
The Guidelines are available at
http://www.cofc.uscourts.gov/sites/default/files/GUIDELINES%20FOR%20PRACTICE%20-%208.22.2019.pdf.
3
scanning charges. Petitioners are therefore entitled to final attorneys’ costs of $1,105.53.
III. Conclusion
In accordance with the foregoing, Petitioners’ motion for attorneys’ fees and costs is
GRANTED. I find that Petitioners are entitled to a reimbursement of attorneys’ fees and costs as
follows:
Attorneys’ Fees Requested $23,035.00
(Reduction of Fees) - ($1,151.75)
Total Attorneys’ Fees Awarded $21,883.25
Attorneys’ Costs Requested $1,516.33
(Reduction of Costs) - ($410.80)
Total Attorneys’ Costs Awarded $1,105.53
Total Attorneys’ Fees and Costs $22,988.78
Accordingly, I award a lump sum in the amount of $22,988.78, representing
reimbursement for Petitioners’ attorneys’ fees and costs, in the form of a check payable to
Petitioners and their attorney, Mr. Jeffrey Golvash.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, Section 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).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).
4