    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 10-360V
                                      Filed: August 25, 2017
                                        Not for Publication

*************************************
YAKETHA JENKINS, as Parent and                  *
Natural Guardian of M.J.,                       *
                                                *
               Petitioner,                      *          Attorneys’ fees and costs decision;
                                                *          reasonable attorneys’ fees and costs;
v.                                              *          time billed for travel
                                                *
SECRETARY OF HEALTH                             *
AND HUMAN SERVICES,                             *
                                                *
               Respondent.                      *
                                                *
*************************************
F. John Caldwell, Jr., Sarasota, Fl, for petitioner.
Ann D. Martin, Washington, DC, for respondent.

MILLMAN, Special Master


                DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

        On September 9, 2015, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that her minor daughter, M.J., suffered
Guillain-Barré syndrome as a result of M.J.’s receipt of Tetanus-Diphtheria-acellular Pertussis
vaccine on April 2, 2009. On February 2, 2015, the undersigned issued a decision awarding
damages to petitioner based on the parties’ stipulation. Petitioner filed a motion for attorneys’
fees and costs on August 15, 2017. For the reasons set forth below, the undersigned GRANTS
petitioner’s motion for attorneys’ fees and costs.

1
 Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document’s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
                                  PROCEDURAL HISTORY

      Petitioner filed her petition on June 10, 2010, over seven years ago. Special Master
Golkiewicz was assigned the case.

       On June 21, 2012, the case was reassigned to the undersigned.

        Petitioner made her first demand on respondent on March 13, 2013. After petitioner’s
first demand, petitioner spent over a year obtaining an expert to determine whether or not a
central line placement constituted "surgical intervention" so that petitioner could satisfy the
requirements of the Vaccine Act that the vaccinee either have sequelae lasting more than six
months or have surgical intervention while an inpatient in a hospital. Petitioner made four
requests for an extension of time during this period.

         On May 27, 2014, petitioner filed an expert report and a memorandum pertaining to
whether or not a central line placement constituted "surgical intervention" so that petitioner could
satisfy the requirements of the Vaccine Act.

        On August 14, 2014, petitioner made another demand on respondent. The parties settled
the case and the undersigned issued a 15-Week Order on October 15, 2014.

        On February 2, 2015, the parties filed their stipulation on damages and on the same date,
the undersigned issued a damages decision based on the stipulation. Paragraph 13 on page 3 of
the stipulation states:

       Petitioner represents that she presently is, or within 90 days of the date of
       judgment will become, duly authorized to serve as guardian/conservator of
       M.J.'s estate under the laws of the State of Georgia.

       No payments pursuant to this Stipulation shall be made until petitioner
       provides the Secretary with documentation establishing her appointment
       as guardian/conservator of M.J.'s estate.

        On July 30, 2015, petitioner moved for a stay on filing for attorneys' fees and costs on the
basis that petitioner had retained Georgia counsel to take the necessary steps to obtain
guardianship, in response to which the undersigned filed an Order August 3, 2015 suspending the
deadline for filing for attorneys' fees and costs, ordering petitioner to file a status report on
September 21, 2015.

        On September 21, 2015, petitioner filed a status report stating that Georgia counsel was
taking steps necessary to obtain guardianship for petitioner and asking for suspension of the
deadline for attorneys' fees and costs until state court proceedings were completed. Petitioner's
counsel suggested filing a status report in 60 days or by November 20, 2015. By non-PDF

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Order, the undersigned granted petitioner's motion.

        On November 18, 2015, petitioner filed a status report saying the Georgia state judge
entered an Order in the guardianship matter, instructing an annuity be purchased for petitioner.
All terms of the Order were to be completed by January 25, 2016. Petitioner again moved to
continue to stay the deadline for attorneys' fees and costs. The undersigned again issued a non-
PDF Order granting petitioner's motion, but said that if petitioner did not take steps to close the
Vaccine Program case by December 18, 2015, the parties must contact the undersigned to set up
a status conference.

        On January 29, 2016, the undersigned held a telephonic status conference with counsel.
Petitioner said that he had sent the judgment to the Georgia attorney and would be speaking to
him early the next week about the case. The undersigned ordered petitioner to file a status report
by February 29, 2016 saying when petitioner would be able to satisfy the requirement in
paragraph 13 of the parties' stipulation stating petitioner must provide documentation showing
she is the legal guardian of M.J. The undersigned noted that judgment in the case entered almost
a year earlier, on February 5, 2015. The undersigned also stated in an Order dated January 29,
2016, "She finds it shocking that petitioner's counsel has not been able to fulfill the requirement
that petitioner become authorized to serve as guardian of M.H.'s estate when he has had almost a
year to do so." The undersigned also noted that paragraph 13 of the stipulation states petitioner
represents that she can become duly authorized within 90 days of the date of judgment that she is
guardian/conservator of M.J.'s estate. The undersigned inquired in the Order, "As it is now well
past 90 days from the date of judgment, the undersigned would like to know if respondent wants
the undersigned to void judgment because petitioner cannot satisfy paragraph 13 of the parties'
stipulation."

       On February 29, 2016, petitioner filed a status report saying that counsel was working
with Georgia counsel to implement the settlement agreement, requested another stay on making a
motion for attorneys' fees and costs, and requested filing another status report in 30 days. On the
same date, the undersigned granted petitioner's motion, ordering petitioner to file a status report
by March 30, 2016.

        On March 30, 2016, petitioner filed a status report saying her counsel had been in active
contact with Georgia counsel, adding "Before any pleadings are filed in the Georgia probate
court, counsel will share them with Respondent's counsel to be certain the ultimate order meets
HHS's requirements."

        On March 31, 2016, the undersigned issued an Order citing the Georgia Probate Court
website which states, "The natural guardian(s) of a minor is/are the parents, if living, or the
parent(s) having legal custody of the minor if the parents are divorced or were never married."
The undersigned inquired whether it was necessary to seek an order from a George probate court
for petitioner in this case if Georgia probate law already considered petitioner to be the child's
legal representative. The Order required respondent to file a response whether respondent would
accept Georgia probate law in lieu of an order from the Georgia probate court. Respondent's

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response was due on April 11, 2016.

        On April 8, 2016, respondent responded to the undersigned's March 31, 2016 Order,
stating that being a guardian is a different legal entity than being a conservator. Only the
Georgia Probate Court can appoint the conservator of a minor's estate. Thus petitioner's status
under Georgia law as a guardian did not satisfy the terms of paragraph 13 of the parties'
stipulation for settlement.

         On June 21, 2016, the undersigned issued an Order stating that petitioner's last status
report was dated March 30, 2016, almost three months earlier. By July 21, 2016, petitioner was
to file a status report stating "when, if ever, petitioner will receive representative authority as the
guardian of M.J. from the State of Georgia."

        On July 20, 2016, petitioner filed a status report saying her counsel spoke with the
Georgia attorney that day who said that an appropriate conservator was being identified in order
to meet the requirements of the Vaccine Program. Petitioner's counsel suggested he file another
status report in 30 days. On July 21, 2016, by non-PDF Order, the undersigned granted
petitioner's motion.

        On August 22, 2016, petitioner filed a status report saying that the Georgia attorney told
her counsel on August 18, 2016 that the judge in the Georgia probate court would be issuing an
amended order appointing a conservator of property for M.J. shortly. Georgia counsel further
advised that the judge was hand-selecting a local fiduciary to serve as the conservator.
Petitioner's counsel suggested he file another status report in 30 days. In a non-PDF Order on
the same date, the undersigned granted petitioner's motion.

        On September 21, 2016, petitioner filed a status report stating that her counsel had talked
to the Georgia attorney in the past week and the judge in the guardianship case had asked for a
conference call with petitioner's counsel to explain the nuances of the Vaccine Program "vis a vis
his proposed final order." Petitioner's counsel was in the process of scheduling the phone
conference with the Georgia probate judge. Petitioner's counsel stated that if he had not filed a
final order from the Georgia state court within 30 days, that he file a status report to advise the
undersigned of the proceedings' status. In a non-PDF Order of same date, the undersigned
granted petitioner's motion.

       On October 24, 2016, which was almost 21 months after judgment entered on the award
of damages in this case, petitioner filed an Order on the Petition for Letters of Conservatorship of
Minor in the State of Georgia, Probate Court as Exhibit 18. The Georgia judge ordered John B.
Barton to be the conservator of M.J.'s estate.

        On November 3, 2016, the undersigned held a telephonic status conference with counsel
to determine if the naming of someone other than petitioner was in satisfaction of paragraph 13
of the parties’ stipulation in this case. Respondent's counsel stated it was. Paragraph 13 also
includes the words:

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        If petitioner is not authorized by a court of competent jurisdiction to serve
        as guardian/conservator of the estate of M.J. at the time a payment pursuant
        to this Stipulation is to be made, any such payment shall be paid to the
        party or parties appointed by a court of competent jurisdiction to serve as
        guardian/conservator of the estate of M.J. upon submission of written
        documentation of such appointment to the Secretary.

       On August 15, 2015, petitioner filed a motion for attorneys' fees and costs. Petitioner
requests attorneys’ fees in the amount of $69,994.70 and attorneys’ costs in the amount of
$8,719.32. Petitioner also incurred conservator costs in the form of a surety bond for $4,301.00.
In accordance with General Order #9, petitioner filed a signed statement saying she has not
advanced any funds in the prosecution of her claim. Therefore, in sum, petitioner requests
$83,015.02 in attorneys’ fees and costs.

        On August 23, 2017, respondent filed a response to petitioner’s motion explaining he is
satisfied that this case meets the statutory requirements for an award of attorneys’ fees and costs
under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent “respectfully recommends
that the [undersigned] exercise her discretion and determine a reasonable award for attorneys’
fees and costs.” Id. at 3.

       Petitioner filed a reply to respondent’s response on August 24, 2017. Petitioner says she
has met her burden of proving she is entitled to an award of attorneys’ fees and costs.

       The matter is now ripe for adjudication.


                                          DISCUSSION

   A. Legal Standard for Attorneys’ Fees and Costs

       1. In General

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in
order to receive a fee award as long as petitioner brought the claim in “good faith and there was a
reasonable basis for the claim.” Id. The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3
F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”). Furthermore, the special master may reduce
fees sua sponte, apart from objections raised by respondent and without providing petitioners
notice and opportunity to respond. See Sabella v. Sec’y of HHS, 86 Fed. Cl. 201, 208–09 (Fed.
Cl. 2009).

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        2. Reasonableness of Requested Attorneys’ Fees and Costs
        Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds that the majority of petitioner’s attorneys’ fees and costs request is reasonable.
However, petitioner's counsel will not receive attorneys' fees for reviewing materials irrelevant to
the instant Vaccine Program case. The undersigned will also reduce petitioner’s award for travel
time billed by her counsel.

        On July 2, 2015, petitioner's counsel charged $270.00 to review proposed
annuity/guardianship documentation. Ex. 21, at 19. On July 23, 2015, petitioner's counsel
reviewed trust proposals at a cost of $360.00. Id. On July 29, 2015, petitioner's counsel
charged $450.00 to review guardianship/annuity documents. Id. On November 18, 2015,
petitioner's counsel charged $390.00 to review the annuity agreement and state court pleadings.
Id. at 20. On March 23, 2016, petitioner reviewed probate materials in anticipation of a
telephone conference with John Sandford about the annuity and attended the conference at a cost
of $249.20. Id. at 21. On March 20, 2016, petitioner's counsel charged $142.40 for legal
research regarding qualifications for annuity companies. Id. The undersigned will not award
attorneys’ fees for any of this time because an annuity or a trust were not parts of the settlement
agreement and the award of damages. Therefore, the undersigned deducts $1,861.60 from
petitioners’ attorneys’ fees and costs award.

        The undersigned also finds that the amount petitioner requests for her attorney’s travel is
excessive. Petitioner's counsel billed 7 hours of time at the hourly rate of $300.00 for “travel
from Sarasota, Florida to Americus, Georgia by automobile for meeting with client at her home.”
Ex. 21, at 7. It is well established that travel time is compensated at 50 percent of counsel's
hourly rate when the attorney is not performing work while traveling. See, Carter v. Sec'y of
HHS, No. 04–1500V, 2007 WL 2241877 (Fed. Cl. Spec. Mstr. July 13, 2007). There is no
indication that counsel performed work while traveling. Therefore, 7 hours of petitioner's
counsel's time will be compensated at a 50 percent rate. Accordingly, the undersigned reduces
petitioner's award of attorneys' fees and costs by $1,050.00.

        The court awards $80,103.42, representing attorneys’ fees and costs. The award shall be
in the form of a check made payable jointly to petitioner and Maglio, Christopher & Toale in the
amount of $80,103.42.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2


IT IS SO ORDERED.



2
 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
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Dated: August 25, 2017       s/ Laura D. Millman
                                Laura D. Millman
                                 Special Master




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