# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: September 11, 2020

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

KEITH MCCARVILLE

, * UNPUBLISHED

*

Petitioner, * No. 1 8

- 424 V

* Special Master Gowen

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*
Respondent. *

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

Bridget C. McCullough

, Muller Brazil, LLP, Dresher, PA , for Petitioner.
Ryan D. Pyles , United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On May 5 , 2020

, Keith McCarville (“Petitioner”) filed a motion for attorneys’ fees and

costs. Petitioner’s Motion for Attorne y Fees (“Fees App.”) (ECF No. 38 ). For the reasons

discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and awards a total of
$ 12,579.05

.

I. Procedural History

On March 22, 2018

, Petitioner filed a petition in the National Vaccine Injury Compensation
Program

. 2 Petitioner alleged that he suffered a shoulder injury related to vaccine administration as a result of receiving an influenza vaccin e on September 24, 2016

. Petition at 1 (ECF No. 1). On
March 24, 2020, the parties filed a stipulation, which I adopted as my decision awarding

1 I intend 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, I agree that the identified material fits within this definition, I will redact such
material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this

case, I am required to post it on the United States Court of Federal Claims' website in acc ordance with the E

Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic

Government Services).

2 The National V accine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injur y Act of 1986, Pub L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2012) (“Vaccine
Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2

compensation on the same day. (ECF No. 32).

On May 5 , 2020 , Petitioner filed a motion for attorneys’ fees and costs. Petition er requests compensation for h er att o rne y, M r. Isaiah Kalinowski

, i n the total amount of $ 12,579.05

, representing $ 11,819.00 i n attorneys’ fees and $ 760.05 in costs. Fees App. at 2

. Pursuant to

General Order No. 9, Petitioner warrants he has not personally incurred any costs in pursuit of h is

claim. Id. Respondent reacted to the fees motion on May 5 , 2020

, stating that “Respondent is
satisfied the statutory requirements for an award o f attorneys’ fees and costs are met in this case .”

R esponse at 2 (ECF No. 38 ). Petitioner did not file a reply thereafter.

The matter is now ripe for adjudication.

II. Analysis

Section 15(e) (1) of 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 compens ation under the Vaccine 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, because Petitioner was awarded compensation pursuant to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs.

Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs. , 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be pr esented when the motion is

filed. Id. at 484 n. 1 . The special master has the discretion to reduce awards sua sponte , independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs. , 8 6 Fed.

Cl. 201, 208

– 09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs

. , 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99

– 537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

a. Attorneys’ Fees

Petitioner requests the following rates for the work of h is counsel : for Ms. Bridget McCullough, $225.00 per hour for work performed in 2018 and 2019, and $250.00 per hour for work performed in 2020; for Mr. Max Muller, $300.00 per hour for work performed in 2017, $317.00 per hour for work performed in 2018, and $325.00 per hour for work performed in 2019; and for Ms. Amy Senerth, $225.00 per hour for work performed in 2017. These rates are consistent
with what counsel at Muller Brazil, LLP have previously been awarded for their Vaccine Program

work, and I find them to be reasonable for the work performed in this case as well.

Turning next to review of the submitted billing statement, I find that the overall hours spent
on this matter appear to be reasonable. The entries are reasonable and accurately describe the work
being performed and the length of time it took to perform eac h task. Respondent also has not
identified any particular entries as being objectionable. Therefore, Petitioner is entitled to final attorneys’ fees of $ 11,819.00

.3 b. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of costs must be reason able. Perreira v. Sec’y of Health & Human Servs. , 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $ 760.05

. This amoun t is comprised of acquiring medical record s, postage, and the Court’s filing fee

. Petitione r has provided adequate supporting documentation for
all the costs, and they appear to be reasonable upon review. Accordingly, Petitioner is awarded the full amount of attorneys’ costs sought.

III. Conclusion

In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is

GRANTED . I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as

follows:

Attorneys’ Fees Requested $ 11,819.00

(Reduction of Fees )

- Total Attorneys’ Fees Awarded $ 11,819.00

Attorneys’ Costs Requested $ 760.05

(Reduction of Costs)

- Total Attorneys’ Costs Awarded $ 760.05

Total Attorneys’ F e es and Costs $ 12,579.05

Accordingly, I award a lump sum in the amount of $ 12,579.05

, representing

reimbursement for P etitioner’s attorneys’ fees and costs, in the form of a che ck payable to

P etitioner and h is attorney, M s. Bridget McCullough

. 3

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/ Thomas L. Gowen

Thomas L. Gowen
Special Master

3 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,” and fees for legal services rendered. Furthermore, Section 15(e)(3)
prevents an attorney fr om charging or collecting fees (including costs) that would be in addition to the amount awarded

herein. See generally Beck v. Sec’y of Health & Human Servs. , 924 F.2d 1029 (Fed. Cir. 1991).

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).