    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                 Filed: January 18, 2019

* * * * * * * * * * * * *  *
MARIETTA SCHENCK,          *
                           *
     Petitioner,           *                         No. 16-685V
                           *                         Special Master Oler
v.                         *
                           *                         Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Diana Lynn Stadelnikas, Maglio Christopher and Toale, PC, Sarasota, FL, for Petitioner.

Voris Edward Johnson, United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

       On June 10, 2016, Marietta Schenck (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34
(2012). Petitioner alleged that the influenza (“flu”) vaccine she received on October 3, 2014
caused her to suffer transverse myelitis (“TM”). See Stip. at 1, ECF No. 43. Petitioner further
alleged that she experienced the residual effects of her injury for more than six months. Id. On
August 29, 2018, the parties filed a stipulation for award of compensation, which I adopted as my
Decision Awarding Damages on September 5, 2018. ECF No. 44.


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 Because this unpublished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.
        On October 12, 2018, Petitioner filed an application for attorneys’ fees and costs. ECF No.
48 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $62,593.22,
representing $54,575.90 in attorneys’ fees and $8,017.32 in costs. Fees App at 1-2. Pursuant to
General Order No. 9, Petitioner has indicated that she has not personally incurred any costs in
pursuit of this litigation. Id. at 2. Respondent responded to the motion on October 15, 2018,
indicating that “Respondent 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. 49).
Petitioner filed her reply on October 16, 2018, reiterating her belief that the requested amount is
reasonable. Reply at 4-5 (ECF No. 50).

       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).

        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. The petitioner bears the burden of providing adequate evidence to
prove that the requested hourly rate is reasonable. Id.

       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




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Court has since updated the McCulloch rates, and the Attorneys Forum Hourly Rate Fee Schedules
for 2015-2016, 2017, and 2018 can be accessed online.3

        Petitioner requests the following rates of compensation for her attorney, Ms. Diana
Stadelnikas: $359.00 per hour for work performed in 2016, $372.00 per hour for work performed
in 2017, and $396.00 per hour for work performed in 2018. Fees App. at 22. Petitioner also requests
rates from $135.00 - $148.00 per hour for paralegal work performed from 2016-2018. Id. These
rates are in conformance to what has consistently been awarded to Ms. Stadelnikas and Maglio
firm paralegals. Accordingly, no adjustment to the requested rates is required.

       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 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for
administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States,
18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL
2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

        Upon review, I find the hours billed in this matter (177.2) to be largely reasonable, with
only minor reductions required. There are several instances of paralegals billing for preparation of
exhibits for filing, which has been consistently found to be an administrative/clerical task.
Rochester, 18 Cl. Ct. at 387; Fees App. Ex. 15 at 2-3. Additionally, several routine filings were
billed by both Ms. Stadelnikas and various paralegals. See, e.g., Fees App. Ex 15 at 13 (entries on
10/10/17 concerning reassignment to a new special master). These issues are relatively minor
however, and the undersigned shall reduce the total fees award by $145.00, representing one hour
of paralegal work.

       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 $8,017.32 in attorneys’ costs. The majority of this amount ($4,738.64) is for mediation
services provided by former Chief Special Master Gary Golkiewicz. Fees App. Ex. 16 at 2. The
services and rate charged by former Chief Special Master Golkiewicz have consistently been
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-Forum-Rate-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%20S
chedule%202018.pdf. The hourly rates contained within the schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015).


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approved by this court. See Reinking v. Sec’y of Health & Human Servs., No. 15-326V, 2018 WL
6565453, at *3 (Fed. Cl. Spec. Mstr. Nov. 20, 2018); Kollias v. Sec’y of Health & Human Servs.,
No. 16-868V, 2018 WL 6301793, at *3 (Fed. Cl. Spec. Mstr. Oct. 2, 2018).

       The rest of the costs are routine expenses in Vaccine Program litigation, such as costs for
medical records and travel expenses to meet with Petitioner and attend the mediation. Petitioner
has provided adequate documentation of all these expenses and all are reasonable in the
undersigned’s experience. Accordingly, all requested costs shall be awarded in full.

II.      Conclusion

       Based on all of the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:

    Attorneys’ Fees Requested                                        $54,575.90
    (Reduction to Total Hours)                                        - $145.00
    Total Attorneys’ Fees Awarded                                    $54,430.90

    Attorneys’ Costs Requested                                       $8,017.32
    (Reduction of Costs)                                                 -
    Total Attorneys’ Costs Awarded                                   $8,017.32

    Total Amount Awarded                                             $62,448.22

        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
hereby awards a total of $62,448.22 to be issued in the form of a check payable jointly to
Petitioner and Petitioner’s counsel, Ms. Diana Stadelnikas, of Maglio Christopher & Toale,
PC, for attorneys’ fees and costs.

        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/Katherine E. Oler
                                              Katherine E. Oler
                                              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).
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