In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

ERIC SWINTOSKY and * 

HEATHER SWINTOSKY, * 

as parents and natural guardians of * No. 12-403V

their daughter, C.M.S., * Special Master Christian J. Moran

 * 

 Petitioners, * 

 * Filed: November 6, 2017

v. * 

 * 

SECRETARY OF HEALTH * Attorneys’ fees and costs; waiver

AND HUMAN SERVICES, * 

 * 

 Respondent. * 

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

Anne C. Toale, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner; 

Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent. 

PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

Eric and Heather Swintosky (the “Swintoskys”) received compensation 

through the Vaccine Program. They now seek an award of attorneys’ fees and 

costs. The Secretary did not challenge any amounts requested. Due to the lack of 

objection from the Secretary, the Swintoskys are awarded their full request. 

I. Procedural History

In their petition, the Swintoskys alleged that the influenza (“flu”) vaccine 

received by their daughter, C.M.S., caused her to suffer a stroke and develop acute 

 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. 
2 

hemorrhagic leukoencephalomyelitis. The Swintoskys gathered and filed medical 

records.

The respondent’s Rule 4 Report argued against awarding compensation 

because the Swintoskys had not presented a medical theory linking the flu vaccine 

to the type of injuries suffered by C.M.S. nor had they offered a logical sequence 

of cause and effect showing that the flu vaccine was the reason for C.M.S.’s 

injuries. In presenting his view, the Secretary noted that the Swintoskys had not 

obtained a report from an expert. 

The undersigned proposed instructions that would treat all expert reports as 

the direct testimony of the respective expert. The Swintoskys’ counsel, Anne 

Toale, researched this issue, see exhibit 118 at 9 (attorney timesheets), and 

objected to the instructions as unduly limiting counsel’s participation in the 

preparation of the expert reports and depriving the Swintoskys of the opportunity 

to present their experts’ oral testimony. See Pet’rs’ Status Rep., filed Aug. 7, 

2013.

The Swintoskys eventually filed expert reports from Dr. John Gaitanis and 

Dr. Lori Jordan, and consulted with Dr. Rohit Bakshi. Exhibits 18, 62, 84, 105, 

and 119 at 2, 5 (payment to Dr. Bakshi). Respondent filed expert reports from Dr. 

Gregory Holmes. Exhibits A, Z, BB, and CC. 

 

On December 15, 2016, the parties filed a joint stipulation to resolve the 

case. The undersigned then issued a decision awarding compensation. Because 

the Swintoskys received compensation, they are entitled to an award of attorneys’ 

fees and costs. 42 U.S.C. § 300aa-15(e).

The Swintoskys filed the pending request for attorneys’ fees and costs on 

May 2, 2017. Consistent with a previous decision from a special master, the 

Swintoskys proposed that their attorneys be compensated at the rate prevailing in 

the forum (Washington, DC), rather than the rate prevailing where they work 

(Sarasota, FL). Dezern v. Sec’y of Health & Human Servs., No. 13-643V, 2016 

WL 6678496 (Fed. Cl. Spec. Mstr. Oct. 14, 2016). The Swintoskys requested 

$102,353.20 in total attorneys’ fees and $51,743.86 in costs, including experts. As 

for the experts specifically, Dr. Gaitanis charged $18,900 ($400/hr. for 47.25 

hours), Dr. Jordan charged $5,500 ($500/hr.2 for 10.5 hours), and Dr. Bakshi 

 2

 The 10/12/2015 entry of Dr. Jordan’s billing statement lists her hourly rate as $600 

rather than $500, as it is listed for every other date entry on the statement. See exhibit 119 at 10. 
3 

charged $4,500 ($1,500/hr. for 3 hours). To support their motion, the Swintoskys 

filed invoices detailing attorney hours, invoices and receipts detailing costs, a 

statement regarding General Order #9, billing statements from experts, and 

affidavits from the attorneys and paralegals who billed time.

The Secretary filed a response to the Swintoskys’ motion for attorneys’ fees 

and costs. The Secretary stated that the statutory prerequisites for an award of 

attorneys’ fees and costs have been met in this case, but does not engage in an 

analysis of the reasonableness of the award. Resp’t’s Resp. at 2. Without making 

any specific objections to the requested fees and costs, the Secretary only 

“recommends that the Special Master exercise his discretion and determine a 

reasonable award for attorneys’ fees and costs.” Id. at 3.

In their reply, the Swintoskys generally defended the amounts requested. In 

addition, the Swintoskys objected to the stance that respondent took. Citing 42 

U.S.C. § 300aa-15(e), the Swintoskys argued that respondent should participate in 

the process of resolving this type of compensation (attorneys’ fees and costs) just 

as respondent participates in the process for resolving other types of compensation, 

such as damages. The Swintoskys further argued that when respondent does not 

present evidence regarding attorneys’ fees, “the Court may properly consider the 

fees and costs to be unopposed and grant them without further analysis.” Pet’rs’ 

Reply at 2.

Respondent was directed to respond to the Swintoskys’ reply. Order, issued 

June 22, 2017. In his brief, the Secretary maintained that neither the Vaccine Act 

nor the Vaccine Rules contemplate any role for the respondent in the resolution of 

requests for attorneys’ fees and costs, and that his deferral to the special master 

should not be construed as a waiver. Resp’t’s Br., filed July 11, 2017, at 9. 

Following the status conference on July 19, 2017, this matter is now ready for 

adjudication.

II. Analysis

Initially, the roles of the government officials should be established as 

foundation. Congress determined that for claims in the Vaccine Program, the 

Secretary of Health and Human Services is always named as the respondent. 42 

U.S.C. § 300aa-12(b)(1) (“In all proceedings brought by the filing of a petition ..., 

 

The $600 rate appears to be a typographical error because the total on the billing statement can 

be correctly calculated only by using the $500 rate for all of the hours listed in the date entries.
4 

the Secretary shall be named as the respondent, shall participate, and shall be 

represented”). The Secretary, in turn, acts through officials at the Division of 

Injury Compensation Programs (“DICP”) to evaluate vaccine petitions and medical 

records.3

 

Congress also specially appointed the Department of Justice to represent the 

Secretary “in all proceedings.” § 300aa-12(b)(1) (citing the Department of Justice’s 

duty to conduct suits in the Court of Federal Claims pursuant to 28 U.S.C. § 

518(a)). “[A]ll proceedings” includes requests for attorneys’ fees and costs 

pursuant to § 300aa-15(e). 

The Secretary now states he fulfills the duty to “participate” by simply 

deferring to the special master’s discretion. However, the lack of an objection 

from the Secretary places the special master in an awkward situation. According 

to the Swintoskys: 

The Court, if acquiescing to serving in the role of fees and costs inquisitor, 

may have issues or misperceptions regarding fees or costs. Unless the Court 

requests clarification from Petitioner before issuing a decision, which it is 

under no obligation to do, the Petitioner has no opportunity to address the 

issue or misperception.

Pet’rs’ Reply at 2-3. 

The Swintoskys’ request that they have an opportunity to respond to specific 

objections is supported by case law. In a variety of contexts, courts have required 

that a party opposing a fee application present specific objections. In a 

consolidated appeal regarding FOIA and Title VII employment discrimination

cases, the D.C. Circuit determined that “[o]nce the fee applicant has provided 

support for the requested rate, the burden falls on the Government to go forward 

with evidence that the rate is erroneous,” Nat’l Ass’n of Concerned Veterans v. 

 3

 5 U.S.C. § 301 (Secretary’s power over the “distribution and performance of [HHS’s] 

business”); 53 Fed. Reg. 49359 (Dec. 7, 1988) (“to reflect the establishment of the National 

Vaccine Injury Compensation Program” the Bureau of Health Professions adds “administers the 

National Vaccine Injury Compensation Program” to its functional statement); 54 Fed. Reg. 

24427 (June 7, 1989) (within the Bureau of Health Professions, the Division of Quality 

Assurance and Liability Management is established and its functional statement includes “(10) 

evaluates petitions for compensation under the National Vaccine Injury Compensation Program 

(NVICP) through a medical review and assessment of compensability for all complete claim 

files”).
5 

Sec’y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982), and later reiterated the same 

point in another consolidated appeal involving prisoner’s rights, First Amendment

rights, and disability rights cases. Covington v. District of Columbia, 57 F.3d 

1101, 1109 (D.C. Cir. 1995). The Ninth Circuit stated in an immigration and 

habeas corpus case that the party opposing the fee application must present 

evidence to support its objections. Nadarajah v. Holder, 569 F.3d 906, 917 (9th 

Cir. 2009). Elsewhere, the Ninth Circuit described the fee opponent’s obligation to 

submit evidence as a “burden of rebuttal.” Gates v. Deukmejian, 987 F.2d 1392, 

1397 (9th Cir. 1992). In a forfeiture of property case involving a fee application, 

the Third Circuit reasoned that “[o]nly with proper notice can the [fee] claimant 

know which request to defend as reasonable.” United States v. Eleven Vehicles, 

Their Equip. & Accessories, 200 F.3d 203, 212 (3d Cir. 2000). In a government 

contracts case, the Court of Federal Claims stated that after the fee seeker 

established reasonable fees by submitting evidence, the issue is whether the 

government can “rebut the presumption of reasonableness that attaches to [the 

established] billing rates.” Sufi Network Servs., Inc. v. United States, 113 Fed. Cl. 

140, 147 (2013), aff’d in relevant part, vacated in part, and remanded, 785 F.3d 

585 (Fed. Cir. 2015). Although none of these cases interpreted the Vaccine Act, 

the Supreme Court has said that fee statutes should be interpreted similarly. CRST 

Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016) (interpreting 

“prevailing party” consistently across fee-shifting statutes); see also Avera v. Sec’y

of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). 

Another example actually comes from the early days of the Vaccine 

Program. After the Secretary had not objected to an award of attorneys’ fees and 

costs when the case was before a special master, the Court dismissed the 

Secretary’s motion for review of a special master’s award of attorneys’ fees and 

costs. McMillan v. Sec’y of Health & Human Servs., 26 Cl. Ct. 357, 358 (1992). 

The Court found that the Government had waived its right to object to the 

attorneys’ fees based on Vaccine Rule 8(f) and on the general rule of waiver 

resulting from a party’s failure to object. Id.

The Secretary attempts to defend his failure to interpose any objection with 

various arguments beginning with the Vaccine Act and the Vaccine Rules. But, 

the Secretary has not offered a persuasive interpretation of the Vaccine Act. The 

Secretary observes that § 300aa-15(e) does not specifically prescribe a role for 

respondent in fee litigation. Resp’t’s Br. at 6-7. True enough. But, § 300aa-15(a), 

which generally defines the compensation available for C.M.S.’s adverse reaction 

to the vaccine, also mentions the Secretary only in the context of determining the

average cost of a health insurance policy. The absence of language specifically 
6 

authorizing or requiring the Secretary to participate in the process of determining, 

for example, unreimbursed medical expenses, has not prevented the Secretary from

engaging life care planners. 

The Secretary also argues that Vaccine Rule 13 (“Attorney’s Fees and 

Costs”) does not mention a role for the Government in the application for 

attorneys’ fees. Resp’t’s Br. at 5-7. This argument misses the point that a fee 

application, as a motion, is also governed by Vaccine Rule 20, which lays out 

general procedures and establishes deadlines for responses to motions. Thus, the 

silence in § 300aa-15(e) or in Vaccine Rule 13 on the Secretary’s role does not 

excuse the Secretary from meeting an obligation to present meaningful arguments.

Apart from an attempt to find a textual ambiguity in section 15 and Vaccine 

Rule 13, the Secretary offers three other arguments / observations. First, the 

Secretary comments that medical personnel at DVIC do not have expertise to 

comment on the reasonableness of fees. This distinction is flawed for two reasons. 

Initially, litigants in other fee-shifting regimes (such as an employer in a Title VII 

employment discrimination case) do not have expertise in attorneys’ fees. 

Nonetheless, as the cases cited above show, the defendants-employers must 

respond to the fee application. Additionally, the respondent’s argument ignores 

that the Department of Justice has institutional experience handling attorneys’ fees 

applications in the Vaccine Program and across a variety of other fee-shifting 

regimes. Unlike other substantive issues that arise during litigation in the Vaccine 

Program, expertise in handling attorneys’ fees applications lies with the attorney, 

not the client. 

The Secretary’s second argument to justify his decision not to interpose 

specific objections is a comment upon how some judicial officials have treated 

some objections. Without citing specific cases, the Secretary remarks that his 

objections to petitioners’ fee applications have not been well-received by special 

masters. However, the Secretary’s contributions have also been beneficial. See, 

e.g., E.S. by & through Sweatt v. Sec’y of Health & Human Servs., No. 15-1222V, 

2017 WL 2417770, at *3 n.2 (Fed. Cl. Spec. Mstr. May 12, 2017) (noting that the 

Secretary’s involvement assisted the special master in determining a reasonable 

hourly rate). Moreover, to the extent that the Secretary is disappointed in 

decisions, the Secretary has not exercised his right to appeal decisions. Examples 

of attorneys’ fees cases in which the Secretary could have pursued an appeal 

include Guerrero v. Sec’y of Health & Human Servs., 120 Fed. Cl. 474 (2015), 

app. dismissed, No. 16-1753 (Fed. Cir. Apr. 22, 2016) and Masias v. Sec’y of 

Health & Human Servs., 106 Fed. Cl. 700 (2012). 
7 

The undersigned quickly acknowledges that judges at the Court of Federal 

Claims may uphold, set aside, or remand decisions by special masters. 42 U.S.C. § 

300aa-12(e)(2)(A)-(C). In pointing out Guerrero and Masias, the undersigned is 

not suggesting that those cases were decided wrongly. Rather, the point of citing 

Guerrero and Masias is to demonstrate that the Government has an option to seek 

further review of outcomes in fee disputes but has not exercised its right to do so. 

By not seeking review in the Federal Circuit, the Government has contributed, at 

least in part, to the current state of litigation over attorneys’ fees.

Third, in explaining why he is not presenting specific objections to the 

amounts requested, the Secretary complains about a lack of resources. Resp’t’s Br. 

at 8. How the Government (both HHS and DOJ) chooses to deploys its resources 

is a matter for officials within the Executive branch. But the undersigned, as a 

member of the Judicial branch, will not take up the job of the Executive branch. If 

the Executive branch officials determine that the best way of protecting the Trust 

Fund is not to object to the amounts of fees requested, then this decision is simply 

a consequence of that decision. 

Under the circumstances in which respondent has been specifically informed 

that a failure to interpose some challenge to the amount requested could be 

interpreted as a waiver and respondent has declined to make any specific 

challenge, the undersigned will not reduce the amount requested sua sponte. 

The undersigned acknowledges that finding the Secretary has waived any 

objections to attorneys’ fees differs from the way the undersigned has usually 

adjudicated fee motions. The undersigned has acted, to borrow a phrase from the 

Switoskys, as a “fee inquisitor.” See, e.g., Abbott v. Secʼy of Health & Human 

Servs., No. 10-485V, 2017 WL 2226614 (Fed. Cl. Spec. Mstr. Apr. 26, 2017), mot. 

for rev. denied, __ Fed. Cl. ___ (slip op. Oct. 31, 2017); but see Hodge by Elson v. 

Secʼy of Health & Human Servs., No. 09-453V, 2017 WL 2333626, at *2 (Fed. Cl. 

Spec. Mstr. May 3, 2017) (finding the Secretary waived any objection to the 

amount requested in costs). Several factors contribute to the undersigned’s change 

in the method of analysis. 

First, the undersigned is not aware of any Federal Circuit case that requires a 

judicial officer to challenge fee applications sua sponte. Further, the undersigned’s 

decisions are not binding. Hanlon v. Sec’y of Health & Human Servs., 40 Fed. Cl. 

625, 630 (1998), aff’d on nonrelevant ground, 191 F.3d 1344 (Fed. Cir. 1999). 

Thus, there appears to be no legal prohibition from changing practices. 
8 

Second, in their reply, the Swintoskys presented a cogent argument that the 

special master should treat their fee application as “unopposed.” Pet’rs’ Reply, 

filed May 12, 2017, at 2. After the Swintoskys raised the issue of potential waiver, 

the undersigned believed his duty as a judicial officer was to resolve the 

Swintoskys’ argument. The undersigned discussed potential waiver with the 

Secretary in June 22, 2017 status conference, alerting the Secretary to a possible 

shift, and allowed the Secretary to file a written brief, which the Secretary did on 

July 11, 2017. 

Third, the Secretary’s decision to refrain from identifying specific problems 

in a fee application alters the triangular relationship among petitioners, the 

Secretary, and special masters. Although the Secretary stated in a July 19, 2017 

status conference that the Government’s “policy” was to determine its position 

about attorneys’ fees on a case-by-case basis, the Government has not interposed 

any specific objections to the amount of fees requested in many months. See

Edgar v. Sec’y of Health & Human Servs., 32 Fed. Cl. 506, 509 (1994) (special 

masters can use prior experience in reviewing fee applications). During this time, 

without the benefit of a meaningful response from the Secretary, the undersigned 

investigated fee applications. See, e.g., Anthony v. Secʼy of Health & Human 

Servs., No. 14-680V, 2016 WL 7733084, at *5-8 (Fed. Cl. Spec. Mstr. Dec. 15, 

2016), mot. for reconsid. denied, 2017 WL 521746 (Fed. Cl. Spec. Mstr. Jan. 11, 

2017), mot. for review dismissed (Fed. Cl. May 8, 2017). These investigations 

necessarily consumed judicial resources, which the increasing caseload in the 

Vaccine Program has made scarcer.4

 Time spent on fee applications cannot be 

spent on adjudicating claims for compensation. 

While spending a great deal of time on fee applications, the undersigned 

simultaneously grew concerned that the undersigned’s investigation did not allow 

for petitioners to defend their fee applications easily. Although special masters do 

possess the authority to resolve fee applications without seeking further input from 

petitioners, Savin ex rel. Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 

313, 316-17 (2008), the fairness of this approach seems to erode with repetition. It 

is one thing for special masters to adjust a fee application when the need for the 

special master’s sua sponte intervention appears derived, at least in part, from an 

 4 Because Congress stated that the Office of Special Masters “shall consist of not more 

than 8 special masters,” 42 U.S.C. § 300aa-12(c)(1), the number of special masters has not 

increased in proportion to the increased number of cases. 
9 

accidental oversight. But, the situation is different when the Secretary 

intentionally follows a practice of not presenting objections. 

The Secretary’s deliberate choice not to object to amounts requested in fee 

applications combined with the Swintoskys’ assertion that the Secretary has 

waived any objection prompts the undersigned’s change in policy.5

 For these 

reasons, the undersigned finds that respondent has waived any objections to the 

amount of fees requested. Absent any objections, the Swintoskys’ request for 

attorneys’ fees and costs is GRANTED IN FULL.

 Accordingly, the Court awards the following:

A lump sum of $154,097.06 in the form of a check made 

payable to petitioners and petitioners’ attorney, Anne C. Toale, 

of Maglio Christopher & Toale, PA.

This sum represents reimbursement 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 shall enter judgment in 

accordance herewith.6

Any questions regarding this order may be directed to my law clerk at (202) 

357-6360. 

 

IT IS SO ORDERED. 

 s/Christian J. Moran

 Christian J. Moran

 Special Master

 5

 As pointed out above, a special master’s decision does not establish a precedent that 

binds the special master who issued the decision, let alone another special master. All special 

masters retain the discretion to evaluate fee applications sua sponte. However, absent any 

contrary appellate guidance, the undersigned expects to follow this decision in reviewing future 

fee applications and the Secretary’s response to them. 

6

 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.