In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: May 21, 2019

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

ANN FLY, * No. 17-1200V

* Special Master Sanders

*

Petitioner, *

*

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Danielle A. Strait, Maglio Christopher and Toale, PA, Seattle, WA, for Petitioner.

Robert P. Coleman, III, United States Department of Justice, Washington, D.C., for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On September 6, 2017, Ann Fly (“petitioner”) filed a petition for compensation pursuant 

to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to 34 (2012). The 

petition alleged that the influenza and pneumococcal conjugate vaccines that petitioner received 

on September 15, 2014, and September 25, 2015, caused her to suffer from systemic inflammatory 

response syndrome (“SIRS”). See Stip. at 1, ECF No. 29. On November 30, 2018, the parties 

filed a stipulation for award of compensation, which the undersigned adopted as her decision 

awarding damages on December 3, 2018. Decision, ECF No. 30.

 

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims’ website. This 

means the ruling 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 identified 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, 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 States 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, 100 Stat. 3755. 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

On February 4, 2019, petitioner filed an application for attorneys’ fees and costs. ECF No. 

36 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $22,695.07

(representing $19,736.20 in fees and $2,958.87 in costs). Fees App. at 2. Pursuant to General 

Order No. 9, petitioner has indicated that she has not personally incurred any costs in pursuit of 

this litigation. Id. Respondent responded to the motion on February 15, 2019, indicating that he 

“is satisfied the statutory requirements for an award of attorneys’ fees and 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. 37). Petitioner filed a reply 

on February 15, 2019, reiterating her belief that the amount requested for attorneys’ fees and costs 

is reasonable. Pet’r’s Reply, ECF No. 38.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The 

Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and 

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 

Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate . . . by 

‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly 

rate.’” Id. at 1347–48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court 

may make an upward or downward departure from the initial calculation of the fee award based 

on specific findings. Id. at 1348.

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 performed 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). Such applications, however, 

should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

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. Petitioners bear the burden of providing adequate evidence to prove 

that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte, without providing petitioners notice 

and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 

(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in 

a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human 

Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the 

Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of 
3

Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in 

relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior 

experience to reduce hourly rates and the number of hours claimed in attorney fee requests . . . 

Vaccine program special masters are also entitled to use their prior experience in reviewing fee 

applications.” Saxton, 3 F.3d at 1521.

a. Hourly Rates

The decision in 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), motion 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, and 2019 can be accessed online.3

Petitioner requests the following rates of compensation for the work of her attorney, Ms. 

Danielle Strait: $307.00 per hour for work performed in 2017, $322.00 per hour for work 

performed in 2018, and $340.00 per hour for work performed in 2019. Fees App. Ex. 1 at 17. 

These rates are consistent with what Ms. Strait has been awarded for her work in the Vaccine 

Program. See Kratzer v. Sec’y of Health & Human Servs., No. 17-1209V, 2019 WL 1806626, at 

*2 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). Accordingly, no adjustment to the requested rates is 

necessary. However, the billing records indicate that Ms. Strait billed 0.5 hours in 2017 at $320.00 

per hour as well. Fees App. Ex. 1 at 17. The undersigned will compensate Ms. Strait for these 

hours at $307.00 per hour as previously established, resulting in a reduction of $6.50.

b. Hours Expended

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.

Upon review, the undersigned finds the overall hours billed (82.1) to be reasonable. 

Counsel has provided sufficiently detailed descriptions for the tasks performed, and upon review 

the undersigned does not find any of the billing entries to be unreasonable. Respondent has also 

not indicated that he finds any of the billing entries to be unreasonable. Accordingly, petitioner is 

entitled to final attorneys’ fees in the amount of $19,729.70.

 

3 The 2015–2016 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 

2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-ForumRate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule

%202018.pdf. The 2019 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule

%202019.pdf. The hourly rates contained within the schedules are updated from the decision in 

McCulloch, 2015 WL 5634323.
4

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). Petitioner requests 

a total of $2,958.87 in attorneys’ costs. This amount comprises the cost of obtaining medical 

records, mailing costs, and the Court’s filing fee. All the costs appear reasonable in the 

undersigned’s experience and petitioner has provided adequate documentation for them. Petitioner 

is thus entitled to the full amount of costs sought.

II. Conclusion

Based on all the above, the undersigned finds that petitioner is entitled to the following 

award of reasonable attorneys’ fees and costs:

Attorneys’ Fees Requested $19,736.20

(Reduction to Rates) - ($6.50)

Total Attorneys’ Fees Awarded $19,729.70

Attorneys’ Costs Requested $2,958.87

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $2,958.87

Total Attorneys’ Fees and Costs $22,688.57

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 petitioner’s request for fees and 

costs, other than those reductions delineated above, is reasonable. Accordingly, the undersigned 

awards the following:

1) A lump sum in the amount of $22,688.57, representing reimbursement for petitioner’s 

attorneys’ fees and costs, in the form of a check payable to petitioner and her attorney, 

Ms. Danielle Strait.

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.4

IT IS SO ORDERED.

s/Herbrina D. Sanders

 Herbrina D. Sanders

Special Master

 

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek 

review. Vaccine Rule 11(a).