In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

CATHERINE GERTRUDE McCABE, *

* No. 13-570V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: June 26, 2015

*

SECRETARY OF HEALTH * Stipulation; Interim Attorneys’ 

AND HUMAN SERVICES, * Fees and Costs; Award in the 

* amount to which respondent 

Respondent. * does not object.

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

Thomas P. Gallagher, Somers Point, NJ, for petitioner; 

Glenn MacLeod, United States Dep’t of Justice, Washington, DC, for respondent.

DECISION AWARDING ATTORNEYS' 

FEES AND COSTS ON AN INTERIM BASIS1

On August 12, 2013, Catherine Gertrude McCabe filed a petition for 

compensation alleging that the influenza vaccine, which she received on 

September 11, 2010, caused her to suffer “numerous health issues that have lasted 

more than six months.” Pet. at ¶1. While the question of whether petitioner is 

entitled to any compensation remains pending, petitioner’s attorney, Mr. Thomas 

P. Gallagher, filed a status report stating that he would no longer be practicing in 

the Vaccine Court. Pet’r’s Status Rep., filed Apr. 29, 2015. 

On June 22, 2015, respondent filed a stipulation of fact concerning interim 

attorneys’ fees and costs in the above-captioned matter. Previously, petitioner 

informally submitted a draft application for interim attorneys’ fees and costs to 

respondent for review. Upon review of petitioner’s application, respondent raised 

 

1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 

2002), requires that the Court post this decision on its website. 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

objections to certain items. Based on subsequent discussions, petitioner amended 

her application to request $22,500.00. Under the circumstances, respondent has 

elected not to raise her objections under Avera and Section 15(e)(1) of the Vaccine 

Act, and does not object to an amount of $22,500.00. Avera v. Sec'y of Health & 

Human Servs., 515 F.3d 1343 (Fed. Cir. 2008). The Court awards this amount.

ANALYSIS

Broadly speaking, there are two issues. The first is whether petitioner/Mr. 

Rooney should receive any attorneys' fees and costs at this time. The second 

question is assuming that some award is appropriate, what is a reasonable amount. 

I. Should Petitioner Be Awarded Attorneys' Fees and Costs on an Interim 

Basis?

In Avera v. Sec'y of Health & Human Servs., the Federal Circuit stated that 

awards of attorneys' fees and costs on an interim basis are permitted in the Vaccine 

Program. 515 F.3d 1343, 1352 (Fed. Cir. 2008). Although the Secretary has 

argued that the circumstances in which Avera permits an award of attorneys’ fees 

and costs on an interim basis are relatively narrow in other cases, the undersigned 

has disagreed with this argument. See, e.g., Nuttall v. Sec'y of Health & Human 

Servs., No. 07-810V, 2011 WL 5926131, at *2 (Fed. Cl. Spec. Mstr. Nov. 4, 2011) 

(citing cases). 

A subsidiary question is whether an interim award should be made in this 

case, which is a matter of discretion. This question turns on the circumstances of 

this case. 

To be eligible for any award of attorneys’ fees and costs, petitioner must 

satisfy the standards for good faith and reasonable basis. See 42 U.S.C. § 300aa—

15(e) (2012). Dr. Axelrod’s report (exhibit 16) fulfills the reasonable basis 

standard in this case. Moreover, the Secretary does not contend petitioner brought 

the claim without a reasonable basis or in bad faith. 

Another question is whether an award of attorneys’ fees and costs should be 

made now, that is, on an interim basis. This issue involves consideration of 

various factors, including protracted proceedings, costly experts, and undue 

hardship. Avera, 515 F.3d at 1351-52; McKellar v. Sec'y of Health & Human 

Servs., 101 Fed. Cl. 297, 300-01 (2011) (discussing Avera factors). 
3

The Secretary has elected not to raise an objection under Avera here. The 

undersigned concludes the circumstances where interim fees should be awarded as 

contemplated by Avera are present here. Accordingly, petitioner is entitled to 

interim attorneys’ fees and costs. 

II. What Is A Reasonable Amount of Attorneys' Fees and Costs?

The second issue is determining a reasonable amount for attorneys' fees and 

costs. Mr. Gallagher seeks $22,100.00 in attorneys’ fees and costs. Additionally, 

in compliance with General Order No. 9, petitioner states that she incurred $400.00

out-of-pocket litigation expenses while pursuing this claim, for a total award of 

$22,500.00. The Secretary does not object to an award of $22,500.00 for 

attorneys’ fees and costs. 

A review of the material indicates that the components of petitioner’s 

request are reasonable. She is awarded the amount to which the Secretary has not 

objected, $22,500.00. 

III. Conclusion

Petitioner is entitled to an award of interim attorneys’ fees and costs. The 

special master determines that there is no just reason to delay the entry of judgment 

on interim attorneys’ fees and costs. Therefore, in the absence of a motion for 

review filed under RCFC Appendix B, the clerk of court shall enter judgment in 

petitioner’s favor. 

After reviewing the request, the Court awards the following:

a. A lump sum of $22,100.00, in the form of a check made payable to 

petitioner and petitioner’s attorney, Thomas P. Gallagher, for 

interim attorneys’ fees and costs.

b. A lump sum of $400.00, payable to petitioner, Catherine Gertrude 

McCabe, for costs she incurred in pursuit of her petition.

The Court thanks the parties for their cooperative efforts in resolving this 

matter. The Clerk shall enter judgment accordingly.
4

Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-

6360.

IT IS SO ORDERED. 

s/Christian J. Moran

Christian J. Moran

Special Master