         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1087V
                                     Filed: January 19, 2018
                                         UNPUBLISHED


    TERESA SHUART,

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

                       Respondent.


Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Amy Paula Kokot, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1


Dorsey, Chief Special Master:

         On August 31, 2016, Teresa Shuart (“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 a right shoulder injury
related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she
received on September 24, 2015. Petition at ¶¶ 1, 2, 7. On September 11, 2017, the
undersigned issued a decision awarding compensation to petitioner based on the
respondent’s proffer. (ECF No. 33.)



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  Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
       On November 22, 2017, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 37.) Petitioner requests attorneys’ fees in the amount of $20,349.00 and
attorneys’ costs in the amount of $1,160.933. (Id at ¶¶ 3-4.) In compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-
pocket expenses. (Id at ¶ 6.) Thus, the total amount requested is $21,509.93.

        On December 6, 2017, respondent filed a response to petitioner’s motion. (ECF
No. 38.) 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 13, 2017, petitioner filed a reply. (ECF No. 39.) Petitioner
disputes respondent’s position that she has no role in resolving attorneys’ fees and
costs and further reiterates his view that his attorneys’ fees and costs in this case are
reasonable.

        The undersigned has reviewed the billing records submitted with petitioner’s
request. The undersigned reduces the hourly rate sought by 50% for 3.0 hours of travel
time expended by another attorney at petitioner’s counsel’s law firm, Isaiah Kalinowski.4
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. This reduction in hourly rate results in a reduction of $537.00 in the
amount of attorneys’ fees sought.



3The undersigned notes that on January 12, 2018, petitioner’s counsel has the invoices to support the
request for costs (ECF No. 41) as listed in the Motion for Attorney Fees (ECF No. 37). The amount of
costs requested remains the same as the original filing.
4
 Mr. Kalinowski’s travel occurred on June 8 -12, 2017, at which time his hourly rate was $358 per hour.
(See ECF No. 37-1, p. 8.) The rate reduction is for entries which reflect that no work was performed.

                                                   2
       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.

      Accordingly, the undersigned awards the total of $20,972.93 5 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel,
Diana Lynn Stadelnikas. Per petitioner’s request, payment should be forwarded to
Maglio, Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, FL 34236.


        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




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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