In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

Estate of JOSEPHINE PLOTKIN, ANNE * 

C. TOALE, ESQ., as Executor, *

* No. 16-1249V

Petitioner, * Special Master Christian J. Moran

*

v. *

* Filed: August 25, 2021

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ fees and costs, interim

* award.

Respondent. *

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

Anne Carrion Toale, Maglio Christopher and Toale, Sarasota, FL, for petitioner;

Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for respondent. 

UNPUBLISHED DECISION AWARDING

ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1

Represented by an attorney from Maglio Christopher and Toale, Ms. Plotkin alleged a 

vaccine harmed her. Pet., filed Sep. 30, 2016. After approximately 14 months, the claim that the 

vaccine harmed Ms. Plotkin ended with a decision in her favor based upon the parties’ 

stipulation. Plotkin v. Sec’y of Health & Human Servs., No. 16-1249V, 2017 WL 7795124 

(Fed. Cl. Spec. Mstr. Nov. 27, 2017). 

After that decision, Ms. Plotkin’s case became more convoluted. While these details are 

set forth in a May 29, 2020 order, those complications are not relevant to petitioner’s pending 

motion. The pending motion, which was filed on June 3, 2021, seeks an award of attorneys’ fees 

and costs on an interim basis. The motion requests that petitioner be awarded attorneys’ fees 

and costs incurred from the inception of the case through January 7, 2018. Exhibit 39 

(timesheets). 

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. This posting will make the decision available to anyone with the internet. 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

For the reasons that follow, petitioner is awarded $16,825.87. 

* * *

Petitioner’s motion implicitly raises a series of sequential questions, each of which 

requires an affirmative answer to the previous question. First, whether petitioner is eligible 

under the Vaccine Act to receive an award of attorneys’ fees and costs? Second, whether, as a 

matter of discretion, petitioner should be awarded her attorneys’ fees and costs on an interim 

basis? Third, what is a reasonable amount of attorneys’ fees and costs? These questions are 

addressed below.

1. Eligibility for an Award of Attorneys’ Fees and Costs

As an initial matter, interim fee awards are available in Vaccine Act cases. Avera v. 

Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Because petitioner 

received compensation from the Vaccine Program, she is entitled to an award of attorneys’ fees 

and costs. 42 U.S.C. § 300aa-15(e)(1). 

2. Appropriateness of an Interim Award

Interim awards should not be awarded as a matter of right. Avera, 515 F.3d at 1352. 

Instead, petitioners must demonstrate “undue hardship.” Id. The Federal Circuit noted that 

interim fees “are particularly appropriate in cases where proceedings are protracted and costly 

experts must be retained.” Id. The Circuit has also considered whether petitioners faced “only a 

short delay in the award” before a motion for final fees could be entertained. Id. 

Here, the Secretary did not challenge petitioner’s request to an award of attorneys’ fees 

and costs. See Resp’t’s Resp., filed June 10, 2021. The lack of objection from the Secretary 

supports a finding that an award on an interim basis is appropriate. Moreover, after the case has 

become protracted in the nearly four years after the November 27, 2017 decision, an interim 

award also allows separation of the attorneys’ fees and costs to which petitioner is indisputably 

entitled from the attorneys’ fees and costs to which the Secretary may interpose an objection. 

See Masias v. Sec’y of Health & Human Servs., No. 99-697V, 2009 WL 899703, at *4 (Fed. Cl. 

Spec. Mstr. Mar. 12, 2009) (awarding “irreducible minimum” in attorneys’ fees), corrected, 2013 

WL 680760 (Fed. Cl. Spec. Mstr. Jan. 30, 2013). 

3. Reasonableness of the Requested Amount

Under the Vaccine Act, a special master may award reasonable attorneys’ fees and costs. 

42 U.S.C. § 300aa-15(e)(1). Reasonable attorneys’ fees are calculated by multiplying a 

reasonable hourly rate by a reasonable number of hours expended on litigation, the lodestar 

approach. Avera, 515 F.3d at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)); 

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). In light of the 

Secretary’s lack of objection, the undersigned has reviewed the fee application for its 

reasonableness. See McIntosh v. Sec’y of Health & Human Servs., 139 Fed. Cl. 238 (2018).
3

A. Reasonable Hourly Rate

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum, 465 U.S. at 895. 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. A petitioner’s counsel in the Vaccine Program is paid the 

forum rate unless the bulk of the work is performed in a locale other than the forum (District of 

Columbia) and the local rate is significantly lower than the forum rate. Avera, 515 F.3d at 1349. 

If these two requirements are met, the Davis County exception applies, and petitioner’s counsel 

is paid according to the local rate to avoid a “windfall.” Id.; see Davis Cty. Solid Waste Mgmt. 

and Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency, 169 F.3d 755, 

757–60 (D.C. Cir. 1999).

For cases in which forum rates apply, McCulloch provides a framework for consideration 

of appropriate ranges for attorneys’ fees based upon the experience of the practicing attorney. 

McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. 

Cl. Spec. Mstr. Sept. 1, 2015), mot. for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. 

Sept. 21, 2015). The Court has since updated the McCulloch rates, and the Attorneys’ Forum 

Hourly Rate Fee Schedules for 2015–2016, 2017, 2018, 2019, 2020, and 2021 can be accessed 

online.2

Here, the proposed hourly rates for Ms. Toale and her colleagues are reasonable. 

Therefore, they are accepted. 

B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours. Reasonable 

hours are not excessive, redundant, or otherwise unnecessary. See Saxton, 3 F.3d at 1521. The 

Secretary did not challenge any of the requested hours as unreasonable. 

The law firm’s time entries provide adequate detail to assess reasonableness. Generally, 

Ms. Toale and staff assisting on the case billed appropriately and reasonably. However, some 

charges were for filing a document. Filing documents is a clerical task for which attorneys 

should not charge. See Guerrero v Secʼy of Health & Human Servs., No. 12-689V, 2015 WL 

3745354, at *6 (Fed. Cl. Spec. Mstr. May 22, 2015) (citing cases), mot. for rev. den’d in relevant 

part and granted in non-relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-

1753 (Fed. Cir. Apr. 22, 2016). To accomplish rough justice, $250 is eliminated. 

In addition, Ms. Toale and paralegals assisting her charged for filing a motion for 

redaction. However, the motion for redaction was not well-founded and petitioner eventually 

withdrew the motion. Pet’r’s Status Rep., filed Feb. 20, 2018, ¶ 1. Consequently, the charges 

for the motion for redaction (roughly $750.00) are eliminated. 

2 The 2015–2016, 2017, 2018, 2019, 2020, and 2021 Fee Schedules can be accessed at:

https://www.uscfc.uscourts.gov/node/2914. The hourly rates contained within the schedules are 

updated from the decision in McCulloch, 2015 WL 5634323.
4

Accordingly, petitioner is awarded attorneys’ fees in the amount of $14,671.20.

C. Costs

Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v. 

Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992), aff’d, 33 F.3d 1375 (Fed. 

Cir. 1994). Petitioner requested $2,154.67 in attorneys’ costs, primarily consisting of acquiring 

medical records and mailings. See exhibit 19. These charges are reasonable. 

* * *

Accordingly, petitioner is awarded:

A lump sum of $16,825.87 in the form of a check made payable to petitioner (Estate 

of Josephine Plotkin, Anne C. Toale, Esq., as Executor) and petitioner’s attorney, Anne 

Carrion Toale.

This amount represents reimbursement of interim attorneys’ fees and other litigation 

costs available under 42 U.S.C. § 300aa-15(e) for work incurred before January 8, 2018. 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.3 

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

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).