In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-1705V
                                     Filed: August 3, 2018
                                        UNPUBLISHED


    HEATHER O’KEEFE,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU);
                                                             Attorneys’ Fees and Costs
    SECRETARY OF HEALTH AND
    HUMAN SERVICES,

                       Respondent.


Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

      On December 29, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) caused-in-fact by her October 20, 2015 influenza (“flu”)
vaccination. Petition at 1-2. On November 14, 2017, the undersigned issued a decision
awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 32).

       On May 14, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 36). Petitioner requests attorneys’ fees in the amount of $12,086.00 and attorneys’
costs in the amount of $983.17. 

In compliance with General Order #9,


1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.

2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. 

Thus, the total amount requested is $13,069.17.

        On May 24, 2018, respondent filed a response to petitioner’s motion. (ECF No.
37). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” 

Respondent adds, however, that he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” 

Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” 

       On May 25, 2018, petitioner filed a reply. (ECF No. 38). Petitioner disputes
respondent’s position that he has no role in resolving attorneys’ fees and costs and
further reiterates her view that her attorneys’ fees and costs in this case are reasonable.

      The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.

       The undersigned finds it necessary to reduce the hourly rate of Petitioner’s
counsel Ms. Strait. Petitioner’s counsel billed at a rate of $320.00 for 2017, and $322.00
for 2018. The undersigned finds the rate of $322.00 for work performed in 2018
reasonable. However, as is consistent with other cases in this program, Ms. Strait’s rate
is reduced to $307.00 per hour for work performed in 2017. 3 This results in a reduction
of $214.50.

       Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the
attorneys’ fee rates.” Rochester v. U.S., 

, 387 (1989); Dingle v. Sec’y of
Health & Human Servs., No. 08-579V, 

, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy, 

, at *5 (citing 

). A total of 1.50 hours 4 was billed by paralegals on tasks considered administrative
3The undersigned addressed Ms. Strait’s rate for work performed in 2017 and found $307 was an
appropriate hourly rate. Russell v. Sec’y of Health & Human Servs., No. 16-1091V at 8 (Fed. Cl. Spec.
Mstr. July 17, 2018).
4 Examples of these entries include: June 29, 2016 (0.1 hrs) “Review and organize retainer packet to
client file.”; August 5, 2016 (0.10 hrs) “Organize and prepare medical records and add to the clients file.”;
December 29, 2016 (0.20 hrs) “Create postage and forward petition to be served on DVIC.”; April 8, 2018
(0.10 hrs) “Collaborate with MSP regarding client entitlement check.”; and May 11, 2018 (0.10 hrs)
“Provide notary service for and notarize Affidavit of Danielle Strait.” These entries are merely example
and are not exhaustive.

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including, opening and setting up client files, organizing documents and mailing
correspondence. For these reasons the undersigned will reduce the attorney’s fees
request in the amount of $211.30. 5

        The full amount of attorney costs requested, $983.17, is awarded.

      The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorneys’ fees and costs.

      Accordingly, the undersigned awards the total of $12,643.37 6 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Danielle Strait. Petitioner requests check be forwarded to Maglio Christopher &
Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida, 34236.

        The clerk of the court shall enter judgment in accordance herewith. 7

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




5This amount consists of 0.20 hours at $105 per hour, 0.70 hours at $145 per hour and 0.60 hours at
$148 per hour.

6 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” as well as fees for legal services rendered.
Furthermore, § 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.,

(Fed. Cir.1991).

7 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.
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