In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 14-605V 

Filed: November 4, 2016 

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

EVANGELINA AVILA, * 

 * 

 Petitioner, * 

 v. * Attorneys’ Fees and Costs; 

 * Contested; Range. 

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 * 

 Respondent. * 

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

Martin Martinez, Martinez Law Office, Napa, CA, for petitioner.

Alexis Babcock, United States Department of Justice, Washington, DC, for respondent. 

DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master: 

On July 14, 2014, Evangelina Avila (“Ms. Avila” or “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” or “Program”]. Petitioner alleged a diphtheria-tetanus-acellular 

pertussis (“DTaP”) vaccine she received on February 21, 2012 caused her to develop a shoulder 

injury related to vaccine administration (“SIRVA”). See generally Petition (“Pet.”), ECF No. 1. 

On December 10, 2015, respondent filed a proffer for an award of compensation. Proffer, ECF 

No. 39. The undersigned issued a decision awarding petitioner compensation according to 

respondent’s Proffer on December 11, 2015. Decision, ECF No. 40. Petitioner now seeks an 

award of attorney’s fees and costs in the amount of $28,324.39, pursuant to Section 15(e) of the 

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, it 

will be posted on the United States Court of Federal Claims' website, in accordance with the EGovernment Act of 2002 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance 

with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other 

information, the disclosure of which would constitute an unwarranted invasion of privacy. If, 

upon review, I agree that the identified material fits within this definition, I will delete such 

material from public access. 

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986). 

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

Vaccine Act. Motion for Attorney’s Fees (“Motion for Fees”), ECF No. 46. After careful 

consideration, the undersigned has determined to grant the request in part for the reasons set 

forth below. 

I. Procedural History. 

This case was filed on July 14, 2014 and initially assigned to Special Master Dorsey. 

ECF No. 1, 5.3 An initial status conference was held on October 23, 2014. Petitioner filed 

medical records via CD on October 31, 2014, and January 5, 2015. Petitioner’s Exhibits (“Pet. 

Ex.”) 1-7. Respondent filed her Rule 4(c) Report (“Rsp. Rpt.”) on July 1, 2015, indicating that 

this matter was appropriate for compensation. ECF No. 26. On July 2, 2015, Chief Special 

Master Dorsey issued a Ruling on Entitlement, finding that the petitioner was entitled to 

compensation. Ruling on Entitlement, ECF No. 27. That same day, the special master issued a 

Damages Order, encouraging the parties to resolve damages informally. Damages Order, ECF 

No. 28. 

This case was reassigned to me on October 19, 2015. ECF No. 36. Respondent filed a 

proffer for an award of compensation on December 10, 2015. ECF No. 39. I issued a decision 

awarding compensation to the petitioner on December 11, 2015. ECF No. 40. 

Petitioner filed a motion for attorneys’ fees on June 6, 2016. Motion for Fees, ECF No. 

46. Before petitioner filed her petition, she had retained attorneys at Curtis Legal Group 

(“Curtis”) to prosecute her case in federal district court. See Petitioner’s Reply to Response to 

Motion for Attorneys’ Fees (“Reply”), ECF No. 48. Upon learning that this was a Vaccine 

Program matter, Curtis contacted Martin Martinez (“Mr. Martinez”), an attorney with experience 

in the Vaccine Program, to handle petitioner’s petition. Mr. Martinez and Curtis agreed to 

represent petitioner as co-counsel “as they [Curtis] had built up a trust between their office and 

the petitioner.” Reply to Response to Motion (“Reply”) at 3, ECF No. 48. Petitioner has 

requested fees and costs for the Curtis Law Firm in the amount of $9,015.00 in attorneys’ fees 

and $1,444.39 in expenses, for a total of $10,459.39. Id. Petitioner requests attorneys’ fees for 

Mr. Martinez in the amount of $17,465.00 and costs in the amount of $400.00 for a total of 

$17,865.00. Id. 

Respondent filed a response to the petitioner’s motion for fees on June 23, 2016. 

Response to Motion for Attorneys’ Fees (“Response”), ECF No. 47. Respondent made no 

specific objections to the attorneys’ hours or rates, but simply offered a range of $11,000 to 

$14,000 as reasonable attorneys’ fees for this case. Respondent listed a number of cases 

involving a similar vaccine injury in which the amount of attorneys’ fees awarded is within the 

range suggested by respondent. Response at 3. 

Petitioner filed a reply to this response on June 27, 2016. Petitioner argued that 

respondent is advocating “a table like cap on attorney fees” which would have a chilling effect 

on the prosecution of SIRVA cases. Reply at 1-3. Furthermore, petitioner contends that the 

attorneys’ fees requested are “reasonable due to the results achieved for the petitioner.” Id. at 3. 

 

3 Special Master Dorsey was elevated to Chief Special Master on September 1, 2015. 
3

This matter is now ripe for decision. 

II. Applicable Law. 

In order to be eligible to practice in the Vaccine Program, an attorney must be admitted to 

practice in the Court of Federal Claims. Vaccine Rule 14(a)(1). An attorney who is not eligible to 

practice in the Vaccine Program cannot recover attorneys’ fees. Underwood v. Sec’y of HHS, No. 

00-357V, 2013 WL 3157525, at *4 (Fed. Cl. Spec. Mstr. May 31, 2013). Furthermore, an 

attorney who is not admitted to practice before the Court of Federal Claims is not eligible to 

serve “of counsel” and collect fees for his work. Id.; Vaccine Rule 14(b). 

However, attorneys who refer cases to practitioners in the Vaccine Program are eligible 

to receive fee awards for work that contributed to the litigation of petitioner’s claim. See, e.g.,

Barrett v. Sec’y of HHS, No. 09-389, 2014 WL 2505689 (Fed. Cl. Spec. Mstr. May 13, 2014) 

(awarding fees to an attorney whose work on petitioner’s claim predated the filing of the 

petition). For example, special masters have routinely awarded costs where an attorney who does 

not practice in the Vaccine Program has been retained to establish a guardianship, when that 

guardianship is a condition of the settlement. Id. at *5 (discussing the practice of awarding the 

costs of establishing a guardianship). Fees for these referral attorneys are determined using the 

same method and standards used to award fees to practitioners in the Vaccine Program. Id. at *14 

(“[T]he reasonableness of a referring attorney’s pre-filing activity is subject to the same standard 

that governs the fee requests of the attorneys who actually litigated the case.”)(Internal citations 

omitted). 

The Vaccine Act permits the payment of reasonable fees and costs. The fact finder uses a 

lodestar method – multiplying a “reasonable” fee by the hours the attorney worked. Blanchard v. 

Bergeron, 489 U.S. 87, 94 (1989); Schueman v. Sec’y of HHS, No. 04-693V, 2010 WL 3421956,

at *3 (Fed. Cl. Spec. Mstr. Aug. 11, 2010). While respondent does have the opportunity to object 

to said amount, pursuant to the Vaccine Rules, when no justification or specific objection is 

proffered, her “representation carries very little weight.” Reyes v. Sec’y of HHS, No. 14-953V, 

2016 WL 2979785, at *1 (Fed. Cl. Spec. Mstr. Apr. 27, 2016) (specifically when the attorneys of 

record supply detailed time sheets and present a complete case). However, respondent’s failure to 

object to fees and costs billed by petitioner’s counsel does not require the special master to find 

the request reasonable, or to give petitioner a “second chance to explain.” Savin ex rel. Savin v. 

Sec’y of HHS, 85 Fed. Cl. 313, 319 (2008). 

The recent decision in McCulloch provides a framework for consideration of appropriate 

ranges for attorneys’ fees based on the experience of a practicing attorney. McCulloch v. Sec’y of 

HHS, No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for 

recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). According to 

McCulloch, if an attorney has been practicing for 20 or more years, an appropriate range is 

approximately $350 to $425 per hour. Id. If an attorney has 11 to 19 years of experience, $300 to 

$375 is proper. Id. An appropriate range for an attorney with 8 to 10 years of experience would 

be $275 to $350. Id. For 4 to 7 year years of experience, $225 to $300 is sufficient. Id. If an 

attorney has fewer than 4 years of experience, he/she should receive between $150 and $225. Id. 
4

In determining an appropriately hourly rate, Special Master Gowen concluded that the 

following factors should be considered: (1) the prevailing rate for comparable legal work in the 

forum of Washington, D.C.; (2) the prevailing rate for cases in the Vaccine Program; (3) the 

attorney’s experience in the Vaccine Program; (4) the attorney’s overall legal experience; (5) the 

quality of the work performed in vaccine cases; and (6) reputation in the legal community and 

community at large. Id. at *17. 

III. Discussion. 

In her response, respondent provided no specific objection to the amount requested or the 

hours worked in this matter, but instead, offered a range which she believes is reasonable to pay 

the attorneys who worked on this case. Response at 3. Rather, respondent “reminded” the Court 

of its discretion in awarding fees, quoting Fox v. Vice, and reiterated the fact that ‘the 

determination of [attorneys’] fees “should not result in a second major litigation.”’ Response at 

2-3. Respondent proffered that a “reasonable” amount for fees and costs in this case would fall 

between $11,000.00 and $14,000.00, without specifically addressing how that range applied to 

this particular matter. 

Based on the billing records submitted by both Mr. Martinez and Curtis, it appears that 

petitioner initially presented to Curtis with the intent of filing a medical malpractice/personal 

injury suit. Curtis collected petitioner’s medical records and sent a demand to the malpractice 

insurance carrier of the hospital where petitioner received the DTaP vaccine. Motion, Exhibit 2, 

at 1 [ECF No. 46-2]. Upon researching the governing vaccine injury claims, Curtis discovered 

that petitioner’s appropriate avenue of recourse was to file a petition in the Vaccine Program, 

which is under the jurisdiction of the U.S. Court of Federal Claims. Curtis then sought out an 

attorney who was admitted to practice in the Vaccine Program. Motion, Exhibit 2, at 2 [ECF No. 

46-2]. Curtis contacted Mr. Martinez on April 18, 2014; billing records indicate that a retainer 

agreement between petitioner and Mr. Martinez was signed on April 28, 2014. Id. Accordingly, 

Curtis, as referring attorneys, will receive attorneys’ fees for work billed through April 28, 2014 

– when Mr. Martinez officially began to represent petitioner in the Vaccine Program. 

Mr. Martinez has been licensed to practice law since 1981, and has been practicing in the 

Vaccine Program since 2008. Motion at 3. He practices in the San Francisco Bay Area and 

therefore qualifies for forum rates. Mr. Martinez previously received his requested hourly rate of 

$350 for work performed from 2015 to 2016. See Dineen v. Sec’y of HHS, No. 15-700, 2016 WL 

1627199 (Fed. Cl. Spec. Mstr. Apr. 4, 2016). Furthermore, based on his experience both in the 

Vaccine Program and overall, an hourly rate of $350 is appropriate under McCulloch. 

Petitioner did not submit any information on the experience or qualifications of the 

attorneys at Curtis Legal Group. However, according to Curtis’s website, the attorneys working 

on this matter have been practicing for the following amounts of time: Andrew Mendlin, 20 

years; Eric Gutierrez, 11 years; and Peter Fisher, 7 years. Curtis is situated in the San Francisco 

Bay Area; therefore, these attorneys qualify for forum rates. However, none of these attorneys 

have any experience in the Vaccine Program. Accordingly, I award hourly rates as follows: 

Andrew Mendlin, $350; Eric Gutierrez, $300; and Peter Fisher, $225. Their paralegal, Barbara 
5

Castro, is awarded an hourly rate of $125. Therefore, the fees awarded to Curtis Legal Group are 

reduced to a total of $3,580. 

2013 

hours

Rates Total 2014 hours

(through 

4/28/2014)

Rates Total

Andrew 

Mendlin

0 3 $350 $1,050

Eric 

Gutierrez

3.6 $300 $1,080 0

Peter Fisher 0 4.5 $225 $1,012.5

Barbara 

Castro

1.5 $125 $187.5 2 $125 $250

4.8 $1,267.5 9.5 $2,312.5

Sum 

Total: 

$3,580

It appears that all of the costs were borne by the Curtis firm in their representation of 

petitioner. Mr. Martinez submitted only costs for the filing of the petition in the amount of $400. 

Therefore, the Curtis firm will be reimbursed for its costs in this matter in the amount $1,444.39. 

After reviewing the billing records, the amount of hours billed by Mr. Martinez seems 

reasonable and I see no erroneous or duplicative billing. See generally Motion. I therefore see no 

reason to reduce petitioner’s application for fees and costs for Mr. Martinez. 

IV. Total Award Summary. 

 In light of the foregoing and pursuant to § 15(e)(1), I award the total of $22,889.39 as

follows: 

 A lump sum of $17,865.004 representing reimbursement for attorneys’ fees and 

costs, in the form of a check made payable jointly to petitioner and petitioner’s 

counsel of record, Martin Martinez; and 

 A lump sum of $5,024.39 representing reimbursement for attorneys’ fees and 

costs, in the form of a check made payable jointly to petitioner and Curtis Legal 

Group. 

 

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 42 U.S.C. § 300aa-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 HHS, 924 F.2d 1029 (Fed. Cir. 1991). 
6

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

IT IS SO ORDERED. 

 

 s/Mindy Michaels Roth 

 Mindy Michaels Roth 

 Special Master 

 

5 Entry of judgment can be expedited by each party’s filing or a joint filing of a notice 

renouncing the right to seek review. See Vaccine Rule 11(a).