In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

(Filed: December 3, 2021)

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

DANIEL PAYNE, * UNPUBLISHED 

* No. 19-413V

Petitioner, *

* Special Master Dorsey

v. *

 * Attorneys’ Fees and Costs

* 

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

 *

 Respondent. *

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

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

Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On March 19, 2019, Daniel Payne (“petitioner”) filed a petition for compensation under 

the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,

2

(“Vaccine 

Act”). Petitioner alleged that as a result of an influenza vaccine administered on September 16, 

2016, he developed rheumatoid arthritis. On April 6, 2021, the parties filed a stipulation, which 

the undersigned adopted as her decision awarding compensation on April 7, 2021. (ECF No. 47).

On September 20, 2021, petitioner filed an application for attorneys’ fees and costs. 

Motion for Attorney Fees and Costs (ECF No. 52). Petitioner requests compensation in the 

1 This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance 

with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to 

anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object 

to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 

18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that 

is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical 

filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine 

Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id. 

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine 

Injury 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. 

§§ 300aa. 
2

amount of $68,917.28, representing $46,632.50 in attorneys’ fees and $22,284.78 in costs. Fees 

App. at 1-2. Pursuant to General Ordre No. 9, petitioner has indicated that he has not personally 

incurred any costs related to his case. Id. at 2. Respondent filed his response on September 20, 

2021, indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees 

and costs are met in this case.” Response at 2 (ECF No. 53). Petitioner filed a reply on 

September 20, 2021, reiterating his belief that the requested attorneys’ fees and costs are 

reasonable. (ECF No. 54).

For the reasons discussed below, the undersigned GRANTS petitioner’s motion and 

awards a total of $68,917.28.

I. Discussion

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and 

costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). 

When compensation is not awarded, the special master “may” award reasonable attorneys’ fees

and costs “if the special master or court determines that the petition was brought in good faith

and there was a reasonable basis for the claim for which the petition was brought.” Id. at 

§15(e)(1). In this case, because petitioner was awarded compensation pursuant to a stipulation, 

he is entitled to a final award of reasonable attorneys’ fees and costs.

a. Reasonable Attorneys’ Fees 

The Federal Circuit has approved use of the lodestar approach to determine reasonable 

attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 

F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an 

initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably 

expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v. 

Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward 

departure from the initial calculation of the fee award based on other specific findings. Id. at 

1348.

Counsel must submit fee requests that include contemporaneous and specific billing 

records indicating the service performed, the number of hours expended on the service, and the 

name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85 

Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 

3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It 

is “well within the special master’s discretion to reduce the hours to a number that, in [her] 

experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the 

special master may reduce a fee request sua sponte, apart from objections raised by respondent 

and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of

Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). 
3

A special master need not engage in a line-by-line analysis of a petitioner’s fee 

application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 

719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its 

attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health

and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests ... 

[v]accine program special masters are also entitled to use their prior experience in reviewing fee 

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

i. Reasonable Hourly Rates

Petitioner requests the following hourly rates for the work of his attorney, Ms. Danielle 

Strait: $320.00 per hour for work performed in 2017, $322.00 per hour for work performed in 

2018, $340.00 per hour for work performed in 2019, $370.00 per hour for work performed in 

2020, and $395.00 per hour for work performed in 2021. Fees App. Ex. 1 at 28. These rates are 

consistent with what Ms. Strait has previously been awarded for her Vaccine Program work, and 

the undersigned finds them to be reasonable herein for work performed in the instant case.

ii. Reasonable Hours Expended

In reducing an award of fees, the goal is to achieve rough justice, and therefore a special 

master may take into account their overall sense of a case and may use estimates when reducing 

an award. See Florence v. Sec’y of Health & Human Servs., No. 15-255V, 2016 WL 6459592, at 

*5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (citing Fox v. Vice, 563 U.S. 826, 838 (2011). It is well 

established that an application for fees and costs must sufficiently detail and explain the time 

billed so that a special master may determine, from the application and the case file, whether the 

amount requested is reasonable. Bell v. Sec'y of Health & Human Servs., 18 Cl. Ct. 751, 760

(1989); Rodriguez, 2009 WL 2568468. Petitioner bears the burden of documenting the fees and 

costs claimed. Id. at *8.

The undersigned has reviewed the submitted billing entries and finds the total number of 

hours billed to be reasonable. The billing entries accurately reflect the nature of the work 

performed and the undersigned does not find any of the entries to be objectionable. Respondent 

also has not indicated that he finds any of the entries to be objectionable either. Accordingly, 

petitioner is awarded final attorneys’ fees of $46,632.50.

b. Attorneys’ Costs 

Petitioner requests a total of $22,284.78 in attorneys’ costs. This amount is comprised of 

acquiring medical records, the Court’s filing fee, postage, work performed by petitioner’s 

medical experts, Dr. M. Eric Gershwin and Dr. S. Sohail Ahmed. Fees App. Ex. 2 at 1-2. The 

undersigned has reviewed the requested costs and finds them to be reasonable and supported 

with appropriate documentation. Accordingly, the full amount of costs shall be awarded.
4

II. Conclusion

Based on all of the above, the undersigned finds that it is reasonable compensate 

petitioner and his counsel as follows: 

Attorneys’ Fees Requested $46,632.50

(Total Reduction from Billing Hours) -

Total Attorneys’ Fees Awarded $46,632.50

Attorneys’ Costs Requested $22,284.78

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $22,284.78

Total Attorneys’ Fees and Costs Awarded $68,917.28

Accordingly, the undersigned awards $68,917.28 in attorneys’ fees and costs, in the form of 

a check payable to petitioner’s counsel, Ms. Danielle Strait and forwarded to Maglio 

Christopher & Toale PA, 1605 Main Street, Suite 710, Sarasota Florida 34236.

3

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of 

Court SHALL ENTER JUDGMENT in accordance with this decision.

4

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master

3 Pursuant to the undersigned’s Order issued on June 3, 2021, due to petitioner’s death and counsel’s inability to 

contact any living family or legal representation of petitioner’s estate, payment of attorneys’ fees and costs is being 

made solely to counsel. Order, dated June 3, 2021 (ECF No. 58).

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing 

the right to seek review.