# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: December 23, 2020

* * * * * * * * * * * * * * UNPUBLISHED

LYNN JONES

, *

*
Petitioner, * No. 19

- 984V

* Special Master Oler

v. *

* Attorneys ’ Fees and Costs

SECRETARY OF HEALTH *
AND HUMAN SERVICES, *

* Respondent. *

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

Anne C

. Toale

, Maglio Christopher & Toale, PA, Sarasota, FL

, for P etitioner.

Colleen C

. Hartley , United States Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEYS ’ FEES AND COSTS 1

On July 10, 2019, Lynn Jones (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program

. 2 Petitioner alleg ed that he suffered from

Guillain

- Barré syndrome as a result of the influenza vaccination he received on October 19, 2018.
Pet. at 1, 5. On August 14 , 2020, Petitioner filed a motion to dismiss her petition. ECF No. 23. The undersigned file her Decision dismissing the Petitioner on August 17, 2020 . ECF No. 24

.

On September 4, 2020

, P etitioner fil ed an application for final attor neys ’ fees and costs.

ECF No. 28 (“Fees App.”). Petitioner requests total attorneys ’ fees and c osts in the amount of
$ 30,149.94

, represen ting $ 27,823.90 in attorneys ’ fees and $ 2,326.04 in attorney s ’ costs

. Fees App. at 1

. Pursuant to General Order No. 9, Petitioner states that s he has not incurred any costs related to this litigation. ECF No. 28 Ex 3

. That same day Respondent responded to the motion stating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees and

1 The undersigned intend s to post this Ruling on the United States Court of Federal Claims' website. This

means the R uling 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 iden tified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case,

the undersigned is required to post it on the United Sta tes 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, 10 0 Stat. 3755.2

costs are met in this case” and requesting that the undersigned “exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2

- 3, ECF No. 29

. Petitioner filed her reply on September 4, 2020, requesting and entry of fees and costs in the full amount requested. ECF No. 30.

This matter is now ripe for consideration.

I. Reasonable Attorneys ’ Fees and Costs

Section 15(e) (1) o f the Vaccine Act allows for the Special Master to award “reasonable

attorneys ' fees , and other costs.” § 300aa

– 15(e)(1)(A)

– (B). Petitioners are entitled to an award of

reasonable attorneys ' fees and costs if they are entitled to compensation under the Vac cine Act, or, even if they are unsuccessful , they are eligible so long as the Special Master finds that the petition was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs. , 515 F.3d 1343, 1352 (Fed. Cir. 2008). Here , although the petition was eventually dismissed, the undersigned does not doubt that it was filed in a good faith belief that Petitioner’s vaccination caused her injury, and there was a reasonable basis for the claim to proceed as long as it did

. Acco rdingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and costs.

It is “well within the special master's discretion” to determine the reasonableness of fees. Saxton v. Sec'y of Health & Human Servs. , 3 F.3d 1517, 1521

– 22 (Fed. Cir. 1993); see also Hines v. Sec'y of Health & Human Servs. , 22 Cl. Ct. 750, 753 (1991). (“[ T]he reviewing court must grant the special master wide latitude in determining the reasonableness of both attorneys ' fees and costs.”). Applications for attorneys ' fees must include contemporaneous and specific billing records that indicate the work perfo rmed and the number of hours spent on said work. See Savin v. Sec'y of Health & Human Servs. , 85 Fed. Cl. 313, 316

– 18 (2008).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the relevant community. See Blum v. Stenson

, 465 U.S. 886, 895 (1984) . The “prevailing market rate” is akin to the rate “in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

Petitioner requests the following hourly rates for the work of her counsel Ms. Anne Carrion Toale, attorneys and paralegals of Maglio Christopher & Toale:

2018 2019 2020

A. Toale

- $420 $445
A. Maglio $381 $400

- D. Strait $322

- - Paralegals $148 $154 $1603

These hourly rates are consistent with what Ms. Toale, her fellow attorneys and paralegals have previously been awarded for their Vaccine Program work, and the undersigned finds them to

be reasonable herein.

b. Reasonable Hours E xpended

Attorneys ' fees are awarded for the “number of hours reasonably expended on the litigation.” Avera , 515 F.3d at 1348 . Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton

, 3 F.3d at 1521 (quoting Hensley v.

Eckerhart , 461 U.S. 424, 434 (1983)). Additionally, it is well

- established that billing for

admin istrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States

, 18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs. , No. 02

- 1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

Upon review, th e undersigned finds the overall hours billed to be r easonable and award s the full amount

.

c. Attorneys ’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitione r requests

a total of $ 2,326.04 in attorneys ’ cost s

. Fees App. at 28, Ex 2

. This amount is comprised of acquiring medical records, postage, travel costs and the Court’s filing fee

. All of these costs are typical of Vaccine Program litigation and are reasonable in the undersigned’s experience

. Petitioner is awarded the full amoun t of costs requested.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa

- 15(e) (2012), the undersigned has reviewed the billing records and costs in this case and finds that P etitione r’s request for fees and

costs is reasonable. T he undersigned finds that it is reasonable to compensate P etitioner and h er counsel as follows:

Attorneys ’ Fees Requested $ 27,823.90
(Reduction to Fees ) Total Attorneys ’ Fees Awarded $ 27,823.90

Attorneys ’ Costs Requested $ 2,326.04
(Reduction to Costs) Total Attorneys’ Costs Awarded $ 2,326.04

Total Amount Awarded $30,149.94

Accordingly, the undersigned awards a lump sum in the amount of $ 30,149.94

, representing reimbursement for reasonable attorneys ’ fees and costs, in the form of a check4

payable jointly to P etitioner and P etitioner’s counsel of record, M s. Anne Carrion Toale , to be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota,

Florida 34236

.

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. 3

IT IS SO ORDERED.

s/ Katherine E. Oler

Katherine E. Oler Special Master

3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
Vaccine Rule 11(a).