In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 16-232V 

Filed: September 30, 2016 

UNPUBLISHED 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

MELISSA WAGNER, * 

 * 

 Petitioner, * 

v. * 

 * Attorneys’ Fees and Costs; 

SECRETARY OF HEALTH * Special Processing Unit (“SPU”) 

AND HUMAN SERVICES, * 

 * 

 Respondent. * 

 * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * 

Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for petitioner. 

Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent. 

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master: 

 

 On February 17, 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 alleged that she suffered left shoulder synovitis and adhesive 

capsulitis that was caused-in-fact by her October 16, 2014 influenza (“flu”) vaccination. 

Petition at 1. On September 9, 2016, the undersigned issued a decision awarding 

compensation to petitioner based on respondent’s Proffer. (ECF No. 17). 

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the 

undersigned intends 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). 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. 

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). 
2 

 On September 29, 2016, petitioner filed an unopposed application for an award 

of attorneys’ fees and costs. (ECF No. 22).3 Petitioner requests attorneys’ fees in the 

amount of $12,890.00, attorneys’ costs in the amount of $75.04, and petitioner’s out-ofpocket costs in the amount of $400.00 for a total amount of $13,365.04. Id. at 4. In 

accordance with General Order #9, petitioner’s counsel represents that petitioner 

incurred $400.00 in out-of-pocket expenses. 

On September 29, 2016, respondent filed a response stating that 

[r]espondent does not object to the overall amount sought, as it is not an 

unreasonable amount to have been incurred for proceedings in this case 

to date. Respondent’s lack of objection to the amount sought in this case 

should not be construed as admission, concession, or waiver as to the 

hourly rates requested, the number of hours billed, or the other litigation 

related costs. 

(ECF No. 23 at 1). 

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 

§ 15(e). Based on the reasonableness of petitioner’s request and the lack of opposition 

from respondent, the undersigned GRANTS petitioner’s application for an award of 

attorneys’ fees and costs. 

Accordingly, the undersigned awards the total of $13,365.044 as follows: 

 A lump sum of $12,965.04, representing reimbursement for 

attorneys’ fees and costs, in the form of a check payable jointly to 

petitioner and petitioner’s counsel, Mark L. Krueger; and

 A lump sum of $400.00, representing reimbursement for petitioner’s 

costs, in the form of a check payable to petitioner. 

 The clerk of the court shall enter judgment in accordance herewith.5

 

3 In the application, petitioner states that respondent has indicated she “would not object to the 

reasonableness and amount of fees and costs requested.” (ECF 22 at 3). 

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” 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). 

5 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. 
3 

IT IS SO ORDERED. 

s/Nora Beth Dorsey 

 Nora Beth Dorsey 

 Chief Special Master