In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

MICHAEL MAGER, * No. 14-820V 

As parent of VICTORIA MAGER, * Special Master Christian J. Moran 

 * 

 Petitioner, * 

 * 

v. * 

 * Filed: April 27, 2016

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, * 

 * Attorneys’ fees on interim basis

 Respondent. * 

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

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

Ann D. Martin, United States Dep’t of Justice, Washington, DC, for respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

 

Michael Mager, as parent of Victoria Mager, (“Petitioner”) alleges that the 

human papillomavirus vaccine administered to Victoria on September 11, 2012, 

either was the cause in fact of her seizure disorder and resultant death or 

aggravated a prior seizure disorder leading to and causing her death. While his 

case remains pending, Mr. Mager filed a motion for an award of attorneys’ fees 

and costs on an interim basis. He is awarded $28,382.02. 

 

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. 

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. 
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I. 

After filing his case, Mr. Mager submitted medical records. Respondent 

filed her Rule 4 report on April 1, 2015, and concluded that petitioner did not meet 

his burden to prove significant aggravation. Resp’t’s Rep. at 11. Mr. Mager has 

been looking for an expert to support his claim since July 2015. After being 

unable to locate an expert, Mr. Mager’s counsel has indicated that he will be 

withdrawing from the case. Mr. Mager wishes to proceed with his claim. See

Pet’r’s Mot. filed Feb. 22, 2016. 

In addition, Mr. Mager filed the pending motion for interim attorneys’ fees 

and costs on February 22, 2016. Pursuant to General Order No. 9, Mr. Mager did 

not incur any out-of-pocket litigation expenses in pursuit of his claim. Respondent 

filed a response on February 24, 2016, and Mr. Mager filed a response on March 1, 

2016. 

II. 

To be eligible for an award of attorneys’ fees and costs on an interim basis, 

petitioners must establish that they filed their petition with a reasonable basis and 

in good faith. 42 U.S.C. § 300aa−15(e). Here, the Secretary has not argued that 

Mr. Mager fails to satisfy either of these elements. Thus, the undersigned finds 

that Mr. Mager’s petition was supported by reasonable basis and was filed in good 

faith. 

Additionally, petitioners who are seeking attorneys’ fees and costs on an 

interim basis must additional some reason that an interim award is appropriate as a 

matter of discretion. Here, the Secretary argued that Mr. Mager does not meet the 

standards for interim awards listed in Avera v. Sec’y of Health & Human Servs., 

515 F.3d 1343, 1351-52 (Fed. Cir. 2008). Under Avera, interim fees are 

appropriate when not receiving fees would impose an undue hardship, there are 

high costs associated with obtaining experts, and the proceedings are protracted. 

Id. 

However, Mr. Mager has established that an interim award is appropriate. 

He has accrued a significant amount of attorneys’ fees and the case has been 

pending for sufficient amount of time. Mr. Mager’s attorney has expressed an 

intent to withdraw. When the Secretary has not challenged the reasonable basis for 

filing the petition, what is the prejudice to paying the accumulated reasonable 

attorneys’ fees and costs and then allowing Mr. Mager’s attorney to withdraw? It 
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seems that either denying the motion for an award of attorneys’ fees and costs on 

an interim basis or delaying any adjudication of that motion would simply prolong 

the duration of Mr. Mager’s case to no one’s benefit. Consequently, Mr. Mager is 

eligible for an award of attorneys’ fees and costs on an interim basis. 

III. 

The final issue is the amount of attorneys’ fees and costs to which Mr. 

Mager is entitled. The statute limits the amounts to “reasonable” amounts. 42 

U.S.C. § 300aa−15(e). The lodestar method is used to establish the reasonable 

amount of attorneys’ fees. 

Here, the Secretary objected to the amount Mr. Mager requested. She stated 

that a suitable amount is between $15,000 and $20,000. The Secretary further 

suggested that the undersigned make a determination as to the amount of an award 

within that range. See Resp’t’s Resp. at 2, 5. 

Because the Secretary provided no explanation for how she determined the 

range, the Secretary’s representation carries relatively little weight. The attorney’s 

timesheets are sufficiently detailed that his activities are understandable. While 

there might be some quibbles on specific entries, the Secretary did not make any 

specific objections. Overall, the amount of time is reasonable. 

The undersigned finds $28,382.02 to be a reasonable amount for all 

attorneys’ fees and costs incurred. 

IV.

There is no just reason to delay the entry of judgment on interim attorneys’ 

fees and costs. Mr. Mager is awarded $28,382.02 in interim attorneys’ fees and 

costs. This shall be paid as follows: 

A lump sum payment of $28,382.02, in the form of a check made 

payable jointly to petitioner and petitioner’s attorney, Mark Krueger, of 

Krueger & Hernandez, S.C., for attorneys’ fees and other litigation 

costs available under 42 U.S.C. § 300aa-15(e). 

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. 
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Any questions may be directed to my law clerk, Shannon Proctor, at 

(202) 357-6360. 

IT IS SO ORDERED. 

 

 s/Christian J. Moran

Christian J. Moran

 Special Master