# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16

- 1087 V

Filed: January 19, 2018

UNPUBLISHED

T ERESA SHUART

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Processing Unit (SPU); Attorneys’

Fees and Costs

Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner. Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

Dorsey

, Chief Special Master:

On August 31, 2016

, Teresa Shuart (“ petitioner ”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa

- 10, et

seq.

, 2 (the “Va ccine Act”). Petitioner alleged that she suffered a right shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received on September 24, 2015. Petition at ¶¶ 1, 2, 7

. On September 11, 2017 , the undersigned issued a decision awarding compensation to petitioner based on the respondent’s proffer

. (ECF No. 33 .)

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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 wi th

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).2 On November 22, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 37 .) Petitioner requests attorneys’ fees in the amount of $ 20,349.00 and attorneys’ costs in the amount of $ 1,160.93 3

. ( Id at ¶¶ 3 -4 .) In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out

- of

pocket expenses. ( Id at ¶ 6 .) Thus, the total amount requested is $ 21,509.93

.

On December 6, 2017, respondent filed a response to petitioner’s motion. (ECF

No. 38 .) R espondent 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.” ( Id. at 1. ) Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in

this case.” ( Id. at 2. ) Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees

and costs.” ( Id. at 3. )

On December 13, 2017

, petitioner filed a reply. (ECF No. 39 .) Petitioner disputes respondent’s position that she has no role in resolving attorneys’ fees and costs and further reiterates his view that his attorneys’ fees and costs in this case are

reasonable.

The undersigned has reviewed the billing records submit ted with petitioner’s request. The undersigned reduces the hourly rate sought by 50% for 3.0 hours of travel

time expended by another attorney at petitioner’s counsel’ s law firm, Isaiah Kalinowski

. 4
In the Vaccine Program, special masters traditionally have compensated time spent traveling when no other work was being performed at one

- half an attorney’s hourly rate. See Hocraffer v. Sec’y of Health & Human Servs. , No. 99

- 533V, 2011 WL 3705153, at

*24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs.

, No. 06

- 559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs. , No. 01

- 61V, 2006 WL 3419805, at *12

- 13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use this rule as standard practice but rather “[e]ach case should be assessed on its own merits.” Gruber v. Sec'y of Health & Human Servs ., 91 Fed. Cl. 773, 791 (2010). “Even an automatic 50% award may be too high for an undocumented claim, given the possibility that an attorney may use the travel time to work on another matter or not to work at all while traveling.” Id. This reduction in hourly rate results in a reduction of $537.00 in the

amou nt of attorneys’ fees sought

.

3 The undersigned not es that on January 12, 2018, petitioner ’s counsel has the invoices to support the request for costs (ECF No. 41 ) as listed in the Motion for Attorney Fees (ECF No. 37 ). The amount of costs requested remains the sam e as the original filing.

4 Mr. Kalinowski’s travel occurred on June 8

- 12, 2017 , at which time his hourly rate was $ 358 per hour. ( See ECF No. 37

- 1, p. 8 .) The rate reduction is for entries which reflect that no work was performed.3 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 $ 20,972.93 5 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel

, Diana Lynn Stadelnikas

. Per petitioner’s request, payment should be forwarded to Maglio, Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota , FL 34236.

T he clerk of the court shall enter judgment in accordance herewith. 6

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

5 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.

, 924 F.2d 1029 (Fed. Cir.1991).

6 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.