Kostura v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0003V
Filed: December 29, 2017
UNPUBLISHED
PHYLLIS KOSTURA,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Franklin John Caldwell, Jr., Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On January 4, 2016, Phyllis Kostura (“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” or “Program”). Petitioner alleges that she
suffered injuries from the influenza and tetanus vaccinations she received in her left arm
on January 15, 2015. Petition at ¶¶ 1-2, 5. On May 25, 2017, the undersigned issued a
decision awarding compensation to petitioner based on the respondent’s proffer. (ECF
No. 42.)
On December 15, 2017, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 46.) Petitioner requests attorneys’ fees in the amount of $18,678.10 and
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
attorneys’ costs in the amount of $1,687.68. (Id. at 1.) In compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-
pocket expenses. (ECF No. 46-3.) Thus, the total amount requested is $20,365.78.
On December 19, 2017, respondent filed a response to petitioner’s motion. (ECF
No. 48.) 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.” 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 21, 2017, petitioner filed a reply. (ECF No. 49.) Petitioner
disputes respondent’s position that she 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. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours with the exceptions listed
below.
Mr. Caldwell billed 4.5 hours of travel at his full hourly rate, $356.00. (ECF No.
46-1, p. 5.) 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. The undersigned finds this time should have been billed
at an hourly rate of $178.00, one-half the usual rate for petitioner’s counsel. Thus, the
amount awarded is reduced by $801.00.
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 in part petitioner’s motion for attorneys’ fees and costs, reducing the award
by $801.00.
2
Accordingly, the undersigned awards the total of $19,564.78 3 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Franklin John Caldwell, Jr. Petitioner requests that payment be forwarded to
Maglio Christopher & Toale, 1605 Main Street, Suite 710, Sarasota, Florida, 34236.
The clerk of the court shall enter judgment in accordance herewith. 4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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” 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).
4 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.
3