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# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: January 9, 2019

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

VICTORIA PUSATERI, * UNPUBLISHED

*

Petitioner, * No. 1 6

- 467 V

*

v. * Spe cial Master Gowen

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ Fees and Costs;

* Interim; Denial.

Respondent. *

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

Scott William Rooney , Nemes, Rooney P.C., Farmington Hills, MI, for petition er

Robert Paul Coleman, III , U.S. Department of Justice, Washington, D.C., for respondent.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS

On December 11, 2018, petitioner filed a third motion for interim attorneys’ fees and costs.

Motion for Interim Att orney’s Fees and Costs (“Petitioner’s Motion”), ECF No. 87. Petitioner

previously was awarded $17,725.00 in inte rim costs on February 13, 2018. See Decision on

Attorneys’ Fees and Costs, ECF No. 65

. I denied petitioner’s second motion for interim attorn eys’

fees and costs on September 24, 2018, because the request did not meet the minimum filing

requirements as stated in the Initial Order. See Decision of S pecial Master Denying Motion for

Interim Attorneys’ Fees and Costs, ECF No. 79.

As a policy, I do not encourage motions for interim fees and costs, because they are often

made prematurely and divert judicial resources away from resolving the entitlement issues central

to all Program cases. I do understand the need for interim fees and costs in some s ituations,

particularly where the fees and costs incurred are particularly high or where the case is expected

to be particularly protracted. As stated in the Initial Order and in my previous Decision denying

petitioner’s interim fees and costs request , I do not typically award interim fees and costs when

the amount of fees requested is less than $30,000.00 , or when the requested costs are less than

$15,000.00 . Initial Order at 4, ECF No. 12.

In her instant M otion, petitioner requested $ 22,980.00 as rei mbursement for interim

attorneys’ fees and $ 10,181 .30 as reimbursement for interim costs. Petitioner’s Motion at ¶ 15.

As petitioner was awarded interim fees and costs within the past twelve months and the

amounts she requested for reimbursement in her i nstant motion do not meet or exceed th e

benchmark provided in the Initial Order , petitioner’s motion is DENIED as premature. Petitioner

may request the fees and costs included in her motion at the conclusion of the case or if and when

the amounts requeste d meet or exceed the benchmark amounts.2

Further, upon reviewing the instant motion, I noted that petitioner’s counsel is requesting

$350.00 per hour for all work performed on this case in 2016, 2017, and 2018. Mr. Rooney has

previously been awarded $30 0.00 per hour for work performed in 2016 and 2017. Mr. Rooney

recently was awarded an hourly rate of $350.00 per hour for work performed in 2018 in Thomas

v. Sec’y of Health & Human Services , No. 14

- 996V, 2018 WL 5725184 (Fed. Cl. Spec. Mstr. Oct.

5, 2018 ). In that decision, Special Master Moran did not find it reasonable to retroactively increase

Mr. Rooney’s hourly rate for work performed prior to 2018. Id. at *2. In accord with Special

Master Moran in Thomas , I will not retroactively increase Mr. Roo ney’s reasonable hourly rate for

the work he performed on this case in 2016 and 2017 in future motions for fees and costs . As

such, in future motions for fees and costs, petitioner’s counsel should submit billing logs that

reflect the $300 hourly rate for those years.

Any questions about this Order or other aspects of the case may be directed to my law

clerk, Kathryn Le, at (202) 357

- 6361 or kathryn le@cfc.uscourts.gov

.

IT IS SO ORDERED.

s/Thom as L. Gowen

Thomas L. Gowen

Special Master