In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 22, 2021
* * * * * * * * * * * * * * UNPUBLISHED
LINDA KUZNITZ, *
*
Petitioner, * No. 18-131V
* Special Master Oler
v. *
* Attorneys’ Fees and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Theodore J. Hong, Maglio, Christopher & Toale, P.A, Seattle, WA, for Petitioner.
Althea Walker Davis, United States Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On January 26, 2018, Linda Kuznitz (“Petitioner”) filed a petition, seeking compensation
under the National Vaccine Injury Compensation Program.2 Pet., ECF No. 1. Petitioner alleges she
suffered from left shoulder injury related to vaccine administration (“SIRVA”) as defined in the
Table or in the alternative, her shoulder injury was caused-in-fact or significantly aggravated by
the influenza (“flu”) vaccination she received on September 15, 2016. See Stipulation ¶ 2, 4, dated
September 2, 2020 (ECF No. 54); see also Petition. On September 2, 2020, the parties filed a
stipulation, which the undersigned adopted as her Decision awarding compensation on the same
day. ECF No. 55.
On September 28, 2020, Petitioner filed an application for final attorneys’ fees and costs.
ECF No. 59 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$33,924.13, representing $32,670.80 in attorneys’ fees and $1,253.33 in attorneys’ costs. Fees
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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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).
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
App. at 1. Pursuant to General Order No. 9, Petitioner states that she has not incurred any costs
related to this litigation. ECF No. 59, Ex. 3. Respondent responded to the motion on October 13,
2020, stating that “Respondent is satisfied the statutory requirements for an award of attorneys’
fees and costs are met in this case” and requesting that the undersigned “exercise her discretion
and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No.
60. That same day Petitioner filed her reply requesting the undersigned to award the full amount
of fees and costs requested.
This matter is now ripe for consideration.
I. Reasonable Attorneys’ Fees and Costs
Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable
attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of
reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or,
even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition
was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Hum. Servs., 515
F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant
to a stipulation, she is entitled to an award of final reasonable attorneys’ fees and costs.
It is “well within the special master's discretion” to determine the reasonableness of fees.
Saxton v. Sec'y of Health & Hum. Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec'y of Health & Hum. Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant
the special master wide latitude in determining the reasonableness of both attorneys' fees and
costs.”). Applications for attorneys' fees must include contemporaneous and specific billing
records that indicate the work performed and the number of hours spent on said work. See Savin
v. Sec'y of Health & Hum. Servs., 85 Fed. Cl. 313, 316–18 (2008).
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate”
is akin to the rate “in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing
adequate evidence to prove that the requested hourly rate is reasonable. Id.
a. Reasonable Hourly Rates
Petitioner requests that her attorney, Mr. Theodore Hong, be compensated at the rate of
$323 per hour for work performed in 2020. Petitioner also requests rates for attorneys at Maglio
Christopher & Toale between $179 - $420 per hour for work performed form 2017 – 2020, based
on attorney and year billed. ECF No. 59, Ex. 1 at 26. Petitioner is also requesting rates for
paralegals at rates between $105 - $160 per hour for paralegals, based on paralegal and year billed.
These rates are consistent with what Mr. Hong, his fellow attorneys and paralegals have previously
been awarded for their Vaccine Program work, and the undersigned finds them to be reasonable
herein.
b. Reasonable Hours Expended
2
Attorneys' fees are awarded for the “number of hours reasonably expended on the
litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Hum. Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).
Upon review, the undersigned finds the overall hours billed to be reasonable. Accordingly,
Petitioner is awarded final attorneys’ fees of $32,670.80.
c. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $1,253.33 in attorneys’ costs. Fees App. at 14. This amount is comprised of acquiring
medical records, postage, the Court’s filing fee, and costs associated with travel for a meeting with
Petitioner. All of these costs are typical of Vaccine Program litigation and are reasonable in the
undersigned’s experience. Petitioner is therefore awarded final attorneys’ costs of $1,253.33.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has
reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and
costs is reasonable. The undersigned finds that it is reasonable to compensate Petitioner and her
counsel as follows:
Attorneys’ Fees Requested $33,924.13
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $33,924.13
Attorneys’ Costs Requested $1,253.33
(Reduction to Costs) -
Total Attorneys’ Costs Awarded $1,253.33
Total Amount Awarded $33,924.13
Accordingly, the undersigned awards a lump sum in the amount of $33,924.13,
representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check
payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Theodore J. Hong.
Petitioner requests the check be forwarded to Maglio Christopher & Toale, PA, 1605 Main
Street, Suite 710, Sarasota, Florida 34236.
3
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.3
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3
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