In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*************************
Estate of JOSEPHINE PLOTKIN, ANNE *
C. TOALE, ESQ., as Executor, *
* No. 16-1249V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: August 25, 2021
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees and costs, interim
* award.
Respondent. *
*************************
Anne Carrion Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioner;
Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1
Represented by an attorney from Maglio Christopher and Toale, Ms. Plotkin alleged a
vaccine harmed her. Pet., filed Sep. 30, 2016. After approximately 14 months, the claim that the
vaccine harmed Ms. Plotkin ended with a decision in her favor based upon the parties’
stipulation. Plotkin v. Sec’y of Health & Human Servs., No. 16-1249V, 2017 WL 7795124
(Fed. Cl. Spec. Mstr. Nov. 27, 2017).
After that decision, Ms. Plotkin’s case became more convoluted. While these details are
set forth in a May 29, 2020 order, those complications are not relevant to petitioner’s pending
motion. The pending motion, which was filed on June 3, 2021, seeks an award of attorneys’ fees
and costs on an interim basis. The motion requests that petitioner be awarded attorneys’ fees
and costs incurred from the inception of the case through January 7, 2018. Exhibit 39
(timesheets).
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. This posting will make the decision available to anyone with the internet. Pursuant to
Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical
information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions
ordered by the special master will appear in the document posted on the website.
For the reasons that follow, petitioner is awarded $16,825.87.
* * *
Petitioner’s motion implicitly raises a series of sequential questions, each of which
requires an affirmative answer to the previous question. First, whether petitioner is eligible
under the Vaccine Act to receive an award of attorneys’ fees and costs? Second, whether, as a
matter of discretion, petitioner should be awarded her attorneys’ fees and costs on an interim
basis? Third, what is a reasonable amount of attorneys’ fees and costs? These questions are
addressed below.
1. Eligibility for an Award of Attorneys’ Fees and Costs
As an initial matter, interim fee awards are available in Vaccine Act cases. Avera v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Because petitioner
received compensation from the Vaccine Program, she is entitled to an award of attorneys’ fees
and costs. 42 U.S.C. § 300aa-15(e)(1).
2. Appropriateness of an Interim Award
Interim awards should not be awarded as a matter of right. Avera, 515 F.3d at 1352.
Instead, petitioners must demonstrate “undue hardship.” Id. The Federal Circuit noted that
interim fees “are particularly appropriate in cases where proceedings are protracted and costly
experts must be retained.” Id. The Circuit has also considered whether petitioners faced “only a
short delay in the award” before a motion for final fees could be entertained. Id.
Here, the Secretary did not challenge petitioner’s request to an award of attorneys’ fees
and costs. See Resp’t’s Resp., filed June 10, 2021. The lack of objection from the Secretary
supports a finding that an award on an interim basis is appropriate. Moreover, after the case has
become protracted in the nearly four years after the November 27, 2017 decision, an interim
award also allows separation of the attorneys’ fees and costs to which petitioner is indisputably
entitled from the attorneys’ fees and costs to which the Secretary may interpose an objection.
See Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009 WL 899703, at *4 (Fed. Cl.
Spec. Mstr. Mar. 12, 2009) (awarding “irreducible minimum” in attorneys’ fees), corrected, 2013
WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30, 2013).
3. Reasonableness of the Requested Amount
Under the Vaccine Act, a special master may award reasonable attorneys’ fees and costs.
42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are calculated by multiplying a
reasonable hourly rate by a reasonable number of hours expended on litigation, the lodestar
approach. Avera, 515 F.3d at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984));
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In light of the
Secretary’s lack of objection, the undersigned has reviewed the fee application for its
reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018).
2
A. Reasonable Hourly Rate
Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See Blum, 465 U.S. at 895. 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. A petitioner’s counsel in the Vaccine Program is paid the
forum rate unless the bulk of the work is performed in a locale other than the forum (District of
Columbia) and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at 1349.
If these two requirements are met, the Davis County exception applies, and petitioner’s counsel
is paid according to the local rate to avoid a “windfall.” Id.; see Davis Cty. Solid Waste Mgmt.
and Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755,
757–60 (D.C. Cir. 1999).
For cases in which forum rates apply, McCulloch provides a framework for consideration
of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney.
McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015), mot. for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr.
Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum
Hourly Rate Fee Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be accessed
online.2
Here, the proposed hourly rates for Ms. Toale and her colleagues are reasonable.
Therefore, they are accepted.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours. Reasonable
hours are not excessive, redundant, or otherwise unnecessary. See Saxton, 3 F.3d at 1521. The
Secretary did not challenge any of the requested hours as unreasonable.
The law firm’s time entries provide adequate detail to assess reasonableness. Generally,
Ms. Toale and staff assisting on the case billed appropriately and reasonably. However, some
charges were for filing a document. Filing documents is a clerical task for which attorneys
should not charge. See Guerrero v Secʼy of Health & Human Servs., No. 12-689V, 2015 WL
3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015) (citing cases), mot. for rev. den’d in relevant
part and granted in non-relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-
1753 (Fed. Cir. Apr. 22, 2016). To accomplish rough justice, $250 is eliminated.
In addition, Ms. Toale and paralegals assisting her charged for filing a motion for
redaction. However, the motion for redaction was not well-founded and petitioner eventually
withdrew the motion. Pet’r’s Status Rep., filed Feb. 20, 2018, ¶ 1. Consequently, the charges
for the motion for redaction (roughly $750.00) are eliminated.
2
The 2015–2016, 2017, 2018, 2019, 2020, and 2021 Fee Schedules can be accessed at:
https://www.uscfc.uscourts.gov/node/2914. The hourly rates contained within the schedules are
updated from the decision in McCulloch, 2015 WL 5634323.
3
Accordingly, petitioner is awarded attorneys’ fees in the amount of $14,671.20.
C. 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), aff’d, 33 F.3d 1375 (Fed.
Cir. 1994). Petitioner requested $2,154.67 in attorneys’ costs, primarily consisting of acquiring
medical records and mailings. See exhibit 19. These charges are reasonable.
* * *
Accordingly, petitioner is awarded:
A lump sum of $16,825.87 in the form of a check made payable to petitioner (Estate
of Josephine Plotkin, Anne C. Toale, Esq., as Executor) and petitioner’s attorney, Anne
Carrion Toale.
This amount represents reimbursement of interim attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e) for work incurred before January 8, 2018. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is
directed to enter judgment herewith.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
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