The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1623V
Filed: November 21, 2018
UNPUBLISHED
JAMES GILMER,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Joseph Alexander Vuckovich, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On December 7, 2016, 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”). Petitioner alleges that he suffered a left shoulder injury as a result of
receiving an Influenza vaccine on October 22, 2015. Petition at 1-2. On March 6, 2018,
the undersigned issued a decision awarding compensation to petitioner based on the
parties’ stipulation. ECF No. 38.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the
action in this case, 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. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
On June 29, 2018, petitioner filed a motion for attorneys’ fees and costs. ECF
No. 44. Petitioner requests attorneys’ fees in the amount of $18,405.30 and attorneys’
costs in the amount of $1,341.57. Id. at 1-2. In compliance with General Order #9,
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. at 2. Thus, the total amount requested is $19,746.87.
On July 6, 2018, respondent filed a response to petitioner’s motion. ECF No. 45.
Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates
any role for respondent in the resolution of a request by a petitioner for an award of
attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case.”
Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise
her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at
3.
On July 9, 2018, petitioner filed a reply. ECF No. 46. Petitioner disputes
respondent’s position that he has no role in resolving attorneys’ fees and costs and
further reiterates his view that his attorneys’ fees and costs in this case are reasonable.
The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.
I. Legal Standard
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). 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 requests hours that are “excessive, redundant, or otherwise unnecessary.”
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (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 [her] 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 a petitioner notice and opportunity to respond. See Sabella v. Sec’y of
Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not
engaged in a line-by-line analysis of petitioner’s fee application when reducing fees.
Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
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“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434.
II. Attorneys’ Fees
A. Joseph Vuckovich
Petitioner requests compensation for Joseph A. Vuckovich at a rate of $305 for
2016, $313.00 for 2017 and $323.00 for 2018. ECF No. 44-2 at 20. The undersigned
finds it necessary to reduce the requested rates due to Mr. Vuckovich’s limited
experience in the Vaccine Program. Considering Mr. Vuckovich’s skill, experience,
quality of work, reputation and the undersigned’s experience evaluating fee applications
in Vaccine Act cases, the undersigned finds that the following rates are appropriate for
Mr. Vuckovich: rates of $275 for work performed in 2016, $290 for work performed in
2017 and $300 for work performed in 2018.3 This results in a reduction of fees
requested in the amount of $933.60.4
B. Administrative Time
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. It is clearly established that
secretarial work “should be considered as normal overhead office costs included within
the attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y
of Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at
387). A total of 4.8 hours5 was billed by the paralegals on tasks considered
administrative including, opening and setting up client files, organizing client file,
3
The undersigned addressed Mr. Vuckovich’s rates for work performed from 2016 – 2018 and found the
awarded rates were appropriate. Shawgo v. Sec’y of Health & Human Servs., No. 17-0306 at *7 (Fed. Cl.
Spec. Mstr. Oct. 10, 2018).
4This amount consist of ($305 - $275 x 2.6 hrs = $78) + ($313 - $290 x 30 = $690) + ($323 - $300 x 7.2
hrs = $165.60) = $933.60.
5 Examples of these entries include: January 26, 2016 (0.1 hrs) “Prepare retainer packet for delivery to
client”, January 26, 2016 (1.0 hrs) “Open new client file accordingly”, February 26 2016 (0.10 hrs)
“Update client file with executed retainer”, December 7, 2016 (0.10hrs) “Receive, review and update file
with confirmation of payment for filing of petition”, October 6, 2017 (0.10hrs) “Write attorney note
re:direction settlement negotiations” and April 20, 2018 (0.20 hrs) “Process and send entitlement check to
client.” ECF No 44-2 at 1-2, 7, 13 and 19. These entries are merely example and are not exhaustive.
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updating notes and sending correspondence. For these reasons the request for
attorney’s fees will be reduced in the amount of $741.00.6
III. Attorney Costs
Petitioner requests reimbursement for costs incurred in the amount of $1,341.57.
ECF No. 44 at 2. After reviewing petitioner’s invoices, the undersigned finds no cause
to reduce petitioner’s’ request and awards the full amount of attorney costs sought.
IV. Conclusion
Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $18,072.277 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Joseph A. Vuckovich. Petitioner requests check be forwarded to Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
The clerk of the court shall enter judgment in accordance herewith.8
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
6This amount consists of 2.20 hours at $105 per hour, 1.70 hours at $145 per hour, 0.50 hours at $148
per hour, 0.80 hours at the reduced rate of $290 per hour and 0.10 hours at the reduced rate of $300 per
hour.
7This 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” as well as 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).
8 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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