         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 16-0520V
                                      Filed: May 22, 2018
                                        UNPUBLISHED


    THOMAS SMITH,

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

                       Respondent.


Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Jason Cockburn Bougere, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

       On April 28, 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 he suffered Guillain-Barre Syndrome (“GBS”) caused by
his November 24, 2014 influenza (“flu”) vaccination. Petition at 1-2. On October 19,
2017, the undersigned issued a decision awarding compensation to petitioner based on
the parties’ stipulation. (ECF No. 37).

       On February 27, 2018, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 42). Petitioner requests attorneys’ fees in the amount of $42,994.20 and
attorneys’ costs in the amount of $4,194.42. Id. at 1-2. In compliance with General

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-
pocket expenses. Id. at 2. Thus, the total amount requested is $47,188.62.

        On March 14, 2018, respondent filed a response to petitioner’s motion. (ECF No.
43). 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 March 20, 2018, petitioner filed a reply. (ECF No. 44). Petitioner argues that
respondent has provided no precise objection. Id. at 2-3. Petitioner also argues that he
has met his burden of establishing reasonable fees and costs. Id. at 3-4.

      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 or rates with the following
exceptions.

        With regard to the hourly rate of $313.00 for 2017 requested by attorney Joseph
A. Vuckovich, the undersigned finds the proposed rates excessive based on his overall
legal experience, the quality of work performed, his experience in the Vaccine Program,
and his reputation in the legal community and the community at large. See McCulloch
v. Sec’y of Health and Human Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015) (stating the following factors are paramount in deciding a
reasonable forum hourly rate: experience in the Vaccine Program, overall legal
experience, the quality of work performed, and the reputation in the legal community
and community at large). The determination of the amount of reasonable attorneys'
fees is within the special master's discretion. See, e.g., Saxton v. Sec’y of Health &
Human Services, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special masters have “wide
latitude in determining the reasonableness of both attorneys’ fees and costs.” Hines v.
Sec’y of Health & Human Services, 22 Cl. Ct. 750, 753 (Fed. Cl. 1991). Moreover,
special masters are entitled to rely on their own experience and understanding of the
issues raised. Wasson v. Sec’y of Health & Human Services, 24 Cl. Ct. 482, 483 (Fed.
Cl. 1991), aff’d in relevant part, 988 F.2d 131 (Fed.Cir.1993) (per curiam). Mr.
Vuckovich falls between the 8-10 year experience range for work performed in 2017.
Based on the rates established in McCulloch, reasonable rates for attorneys with 8-10
years of experience in the vaccine program fall between $281- $358 for 2017. 3 The
undersigned reduces attorney Joseph A. Vuckovich rate to $290 for work performed in
2017, therefore reducing the total fee request by $11.50.

3   The 2017 Fee Schedule can be accessed at http://www.cofc.uscourts.gov/node/2914

                                                   2
        It is clearly established that secretarial work “should be considered as normal
overhead office costs included within the attorneys’ fee rates.” Rochester v. U.S., 18 Cl.
Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human Servs., No. 08-579V, 2014 WL
630473, 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, 2016 WL 720969,
at *5 (citing Rochester, 18 Cl. Ct. at 387). Billing invoices included multiple tasks
considered administrative overhead. These entries include April 28, 2016 (0.20hrs)
“Forward copy of peition to HHS via certified mail”; April 29, 2016 (0.30 hrs) “Prepare 3
CDs containing exhibits16-.0 Ship to court and DOJ.” And October 30, 2016 (0.10 hrs)
“Receive and review e-mail regarding attorney travel charges”. (ECF No. 42-1 at 3, 5).
The undersigned reduced the request for fees in the amount of $81.00.

        The undersigned has reviewed the request for costs, however the request shall
be reduced by $81.46 for the cost billing entry listed as “Priceline Hotels” dated
September 20, 2016. No invoice or receipt was submitted regarding this charge and the
date listed on the list for costs does not correspond with the travel dates billed in the
attorney fee records. 4

      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 in the reduced amounts.

       Accordingly, the undersigned awards the total of $47,014.66 5 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Isaiah Richard Kalinowski.

          The 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


4
    Petitioner’s counsel billed for travel on September 26, 2016. (ECF No. 42-1 at 5).

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.
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