    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                        Filed: May 19, 2020

* * * * * * * * * * * * *  *
MATTHEW MCDERMOTT,         *                                     UNPUBLISHED
                           *
         Petitioner,       *                                     No. 17-1401V
                           *                                     Special Master Gowen
v.                         *
                           *                                     Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner.
Mallori B. Openchowski, United States Department of Justice, Washington, DC, for Respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On February 3, 2020, Matthew McDermott (“Petitioner”) filed a motion for attorneys’ fees
and costs. Motion for Attorney Fees and Costs (“Fees App.”) (ECF No. 42). For the reasons
discussed below, I GRANT Petitioner’s motion for attorneys’ fees and costs and award a total of
$44,454.48.

    I.        Procedural History

        On October 2, 2017, Petitioner filed a petition in the National Vaccine Injury
Compensation Program.2 Petitioner alleged that he suffered optic neuritis and anterior ischemic
optical neuropathy as a result of receiving an influenza (“flu”) vaccine on October 3, 2014. See
Petition (ECF No. 1). On October 7, 2019, petitioner filed a motion for a decision dismissing the

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 Because this unpublished ruling contains a reasoned explanation for the action in this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 accordance 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 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.A. § 300aa.
petition pursuant to Rule 21(a), and on the same day I issued my decision dismissing the petition
for insufficient proof. (ECF No. 38).

        On February 3, 2020, Petitioner filed a motion for final attorneys’ fees and costs. Petitioner
requests compensation for his attorney, Mr. Robert Krakow, in the total amount of $44,454.58,
representing $37,738.30 in attorneys’ fees and $6,716.28 in costs. Fees App. at 25. Pursuant to
General Order No. 9, Petitioner warrants he has not personally incurred any costs in pursuit of his
claim. Fees App. Ex. 5. Respondent reacted to the fees motion on February 13, 2020, stating that
“Respondent defers to the court regarding whether the statutory requirements for an award of
attorneys’ fees and costs are met in this case” and asking that I exercise my discretion and
determine a reasonable award for attorneys’ fees and costs. Response at 2,4. (ECF No. 43).
Petitioner filed a reply on February 13, 2020, indicating “Petitoiner respectfully relies on the facts,
law and argument presented in his submission filed on February 3, 2020.” Reply at 1. (ECF No.
44).

         The matter is now ripe for adjudication.

   II.      Analysis

        Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). Here, I do not doubt that the petition was filed
in good faith and upon review of the record, I find that there was a reasonable basis to file the
petition. Additionally, Respondent has not challenged the reasonable basis of the claim.
Accordingly, Petitioner 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 presented 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., 86 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

       I have reviewed the rates requested by Petitioner for the work of his counsel, Mr. Robert
Krakow, and I find the rates requested herein to be consistent with what Mr. Krakow has previously
been awarded for his Vaccine Program work and reasonable in light for the work performed in this
case.

        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 each task. Respondent also has not
identified any particular entries as being objectionable. Therefore, Petitioner is entitled to final
attorneys’ fees of $37,738.30.


                                                    2
                  b. Attorneys’ 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). Petitioner requests total
attorneys’ costs in the amount of $6,716.28. This amount is comprised of acquiring medical
records, postage, the Court’s filing fee, and work performed by Petitioner’s expert, Dr. Dean
Cestari. Fees App. Ex. 3 at 1. Petitioner has provided adequate documentation supporting all of
the requested costs, and all appear reasonable in my experience. Petitioner is therefore entitled to
the full amount of 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                                                     $37,738.30
    (Reduction of Fees)                                                                -
    Total Attorneys’ Fees Awarded                                                 $37,738.30

    Attorneys’ Costs Requested                                                     $6,716.28
    (Reduction of Costs)                                                               -
    Total Attorneys’ Costs Awarded                                                 $6,716.28

    Total Attorneys’ Fees and Costs                                               $44,454.48

       Accordingly, I award a lump sum in the amount of $44,454.48, representing
reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check payable to
Petitioner and his attorney, Mr. Robert Krakow.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.




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 from 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).

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/s/Thomas L. Gowen
Thomas L. Gowen
Special Master




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