        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 15-1231V
                                     Filed: March 23, 2017
                                          Unpublished

****************************
CYNTHIA BASSETT,           *
                           *
               Petitioner, *
                           *
v.                         *
                           *                               Attorneys’ Fees and Costs;
SECRETARY OF HEALTH        *                               Special Processing Unit (“SPU”)
AND HUMAN SERVICES,        *
                           *
               Respondent. *
                                                  *
****************************
Isaiah R. Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

      On October 22, 2015, 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 alleged that she suffered injuries, including Guillain-Barré
Syndrome (“GBS”), as a result of receiving the influenza (“flu”) vaccine on September
11, 2013. On October 14, 2016, the undersigned issued a decision awarding
compensation to petitioner based on the parties’ joint stipulation. (ECF No. 30).

       On March 8, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 35). Petitioner requests attorneys’ fees in the amount of $23,067.40 and attorneys’
costs in the amount of $3,214.58 for a total amount of $26,281.98. Id. at 1-3. In

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.

2National 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).
compliance with General Order #9, petitioner’s counsel filed a signed statement from
petitioner indicating she incurred no out-of-pocket expenses. (ECF No. 35-3).

        On March 14, 2017, respondent filed a response to petitioner’s motion. (ECF No.
36). In his response, 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. Petitioner filed a reply on March 23, 2017. (ECF
No. 37).

       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, except for the
following entries.

        Petitioner requests the full hourly rate for time petitioner’s counsel spent
traveling. 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.

        Petitioner properly separates the time spent by petitioner’s counsel traveling to
and from her meeting with petitioner from the time spent in the meeting. Compare
Exhibit 10 at 3 (first entry dated Jan. 23, 2015) with Exhibit 10 at 3 (second entry, dated
Jan. 23, 2015). Petitioner does not indicate that petitioner’s counsel performed any
substantive work during the 3.5 travel hours. Id. Petitioner is awarded attorneys’ fees
at a rate which is 50 percent of petitioner’s counsel’s normal rate for this travel time, as
well as for the 3.5 hours billed for his return travel on January 24, 2015. Id. Thus, the
award of attorneys’ fees is reduced by $1,050.00.

      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 petitioner’s motion for attorneys’ fees and costs, minus the noted reduction.

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      Accordingly, the undersigned awards a lump sum amount of $25,231.98, 3
representing reimbursement for attorneys’ fees and costs, in the form of a check
payable jointly to petitioner and petitioner’s counsel, Isaiah R. Kalinowski. 4

        The clerk of the court shall enter judgment in accordance herewith. 5

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




3This 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).

4Petitioner requests the check be forwarded to Maglio Christopher & Toale, PA, at 1605 Main St., Suite
710, Sarasota, FL 34236

5 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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