In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-1320V

Filed: April 2, 2019

UNPUBLISHED

ROBERT MALWITZ,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU); 

Attorneys’ Fees and Costs

Franklin John Caldwell, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.

Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

On September 25, 2017, Robert Malwitz (“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 GuillainBarré syndrome (“GBS”) as a result of an influenza (“flu”) vaccine and pneumococcal 

conjugate vaccine (“Prevnar-13”) administered to him on September 14, 2016. Petition 

at 1. On December 10, 2018, the undersigned issued a decision awarding 

compensation to petitioner based on the respondent’s proffer. 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 Because this unpublished decision contains a reasoned explanation for the 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, 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. 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 March 19, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF 

No. 44. Petitioner requests attorneys’ fees in the amount of $29,091.60 and attorneys’ 

costs in the amount of $1,920.27. Id. at 1. 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 $31,011.87.

 

On March 19, 2019, 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 March 19, 2019, 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 

engage 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 
3

“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. Discussion

A. Administrative Time 

Upon review of the billing records submitted, it appears that a number of entries 

are for tasks considered clerical or administrative. In the Vaccine Program, 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 4.2 hours was billed by paralegals on tasks considered administrative 

including, receiving documents, forwarding correspondence, reviewing, organizing and 

finalizing documents. The undersigned reduces the request for attorney fees by 

$613.803, the total amount of entries considered administrative. 

III. Attorney Costs

Petitioner’s requests reimbursement for attorney costs in the amount of 

$1,920.27. 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 $30,398.074 as a lump 

sum in the form of a check jointly payable to petitioner and petitioner’s counsel 

Franklin John Caldwell. Petitioner requests check be forwarded to Maglio 

Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.

 3 This amount consists of 3.2 hours at $145 per hour, 0.70 hours at $148 per hour and 0.30 hours at $154 

per hour.

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).
4

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

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

 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.