        In the United States Court of Federal Claims
                                      No. 15-1100V

                                (E-Filed: June 21, 2018)1

                                             )
    MARIA CRESPO, on behalf of N.S., a minor )
    child,                                   )
                                             )
                   Petitioner,               )          Attorneys’ Fees and Costs;
             v.                              )          Guardianship Costs;
                                             )          Compliance with State Law.
    SECRETARY OF HEALTH                      )
    AND HUMAN SERVICES,                      )
                                             )
                   Respondent.               )
                                             )

Amber Diane Wilson, Washington, DC, for petitioner.

Daniel A. Principato, Trial Attorney, with whom were Chad A. Readler, Acting
Assistant Attorney General, C. Salvatore D’Alessio, Acting Director, Catherine E.
Reeves, Deputy Director, and Alexis B. Babcock, Assistant Director, Torts Branch, Civil
Division, United States Department of Justice, Washington, DC, for respondent.

                                        OPINION

CAMPBELL-SMITH, Judge.

       Before the court is petitioner’s motion for review of the special master’s decision
awarding attorneys’ fees and costs, pursuant to the Rules of the United States Court of
Federal Claims (RCFC), Appendix B, Vaccine Rule 23. See ECF No. 44. The
government has responded. See ECF No. 47. Petitioner has requested oral argument,
which the court deems unnecessary. This matter is ripe and ready for a decision by the
court. For the following reasons, petitioner’s motion is DENIED, and the special
master’s decision of December 5, 2017, is SUSTAINED.

1
       Pursuant to Rule 18(b) of the Vaccine Rules of the United States Court of Federal
Claims (Appendix B to the Rules of the United States Court of Federal Claims), this
opinion was initially filed under seal on May 30, 2018. Pursuant to ¶ 4 of the ordering
language, the parties were to propose redactions of the information contained therein on
or before June 13, 2018. No proposed redactions were submitted to the court.
I.     Background

        Petitioner filed the instant matter seeking compensation for injuries suffered by
N.S., a minor child, as a result of receiving the DTaP and pneumococcal conjugate
vaccinations, pursuant to the National Childhood Vaccine Injury Act, 42 U.S.C. §§
300aa-1 to -34 (2012) (the Vaccine Act). See ECF No. 1. In January 2017, the parties
filed a stipulated agreement for compensation in an amount of $232,549.31. See ECF
No. 26. The agreement contemplated that petitioner would, within 90 days of the entry
of judgment, become duly authorized to serve as the guardian or conservator of N.S.’s
estate, in accordance with Florida state law. See id.

       In addition to the terms of the agreement, petitioner contends that Florida law
requires several protections for settlements involving minors, as summarized below:

       (1)     that a guardian ad litem review settlements exceeding $50,000, see Fla.
       Stat. § 744.3025(1)(b);

       (2)   that a guardianship be established for any awards to minors exceeding
       $15,000, see Fla. Stat. § 744.387(2);

       (3)    that an annual accounting of the guardianship account be performed, see
       Fla. Stat. § 744.3678;

      (4)   that a final petition for discharge of the guardianship be filed when the
child reaches the age of majority, see id.; and

       (5)   that all guardians be represented by an attorney, see Fla. Probate Rule
       5.303(a).

See ECF No. 44 at 6-7. Petitioner represents that she has complied with the currently
applicable laws. See id. at 7.

       Petitioner moved for an award of attorneys’ fees and costs, which were awarded
by the special master in December 2017. See ECF No. 42. Petitioner now objects to
two aspects of the special master’s decision. First, petitioner claims that the special
master improperly denied attorneys’ fees for certain legal research and review of court
orders. See ECF No. 44 at 7. And second, petitioner argues that the special master erred
in denying reimbursement of the costs associated with the guardian ad litem and
guardianship required by Florida law. See id. at 7-8.




                                            2
II.    Legal Standards

        The United States Court of Federal Claims has jurisdiction to review the special
master’s decision pursuant to 42 U.S.C. § 300aa-12(e)(1). See also Vaccine Rule 23.
Following its review, the court may either: (1) uphold the special master’s findings of
fact and conclusions of law and sustain the special master’s decision; (2) set aside some
or all of the special master’s findings of fact and conclusions of law and issue different
findings of fact and conclusions of law; or (3) remand the petition for further action in
accordance with the court’s direction. See 42 U.S.C. § 300aa-12(e)(2)(A)-(C); see also
Vaccine Rule 27.

        With regard to compensation, the Vaccine Act provides that: “[i]n awarding
compensation on a petition . . . the special master or court shall also award as part of
such compensation an amount to cover—(A) reasonable attorneys’ fees, and (B) other
costs, incurred in any proceeding on such petition.” 42 U.S.C. § 300aa-15(e)(1). The
court evaluates a special master’s decision on fees and costs for abuse of discretion.
Hall v. Sec’y of Dep’t of Health & Human Servs., 640 F.3d 1351, 1356 (Fed. Cir. 2011).
A special master abuses his or her discretion when the decision is:

       (1) . . . clearly unreasonable, arbitrary, or fanciful; (2) . . . based on an
       erroneous conclusion of the law; (3) . . . clearly erroneous; or (4) the record
       contains no evidence on which the . . . [special master] rationally could have
       based his decision.

Murphy v. Sec’y of Dep’t of Health & Human Servs., 30 Fed. Cl. 60, 61 (1993) (quoting
Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991)). See also Munn v.
Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 (1992) (explaining this
court owes “great deference” to the fact-findings and fact-based conclusions of the
special master); Silva v. Sec’y of Dep’t of Health & Human Servs., 108 Fed. Cl. 401,
405 (2012) (stating it is “extremely difficult” to establish the “reversible error” necessary
to disturb a special master’s decision on fees).

       An “abuse of discretion may only be found where ‘no reasonable man would take
the view adopted by the [special master] . . . .’” Murphy, 30 Fed. Cl. at 62 (quoting PPG
Indus., Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1572 (Fed. Cir. 1988)).
The court, however, reviews mistakes of law without deference to the special master’s
decision. See Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir.
2008) (citing Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353, 1355-56
(Fed. Cir. 2007)).




                                             3
III.   Analysis

        Petitioner in this case takes issue with two aspects of the special master’s decision
on fees and costs. First, petitioner contends that the special master abused her discretion
in making certain reductions to petitioner’s fee request. And second, petitioner contends
that the special master erred as a matter of law in denying costs associated with the
establishment of a guardianship in accordance with Florida state law. The court will
review each claim in turn.

       A.     The Special Master Did Not Abuse Her Discretion in Reducing Fee Award

        In her motion, petitioner argues that the special master erred in reducing by $239
the fees associated with attorney review of certain court orders, see ECF No. 44 at 9-11,
and for reducing the award by ten percent for legal research and block-billed entries, see
id. at 11-15.

        With regard to the first claim, it appears that petitioner objects to the special
master’s characterization of billing entries for 0.1 hour to “read court order; update case
management,” which appear after entries indicating that counsel had “review[ed] a one-
page court order or schedul[ed] a conference,” as administrative in nature. See ECF No.
42 at 5. The special master interpreted these billing entries as accounting for updates to
the calendar, rather than substantive legal review of the court’s orders. She stated:
“[b]eyond the fact that this is clerical work billed at an attorney’s rate, the undersigned
cannot imagine how it takes 0.1 hours or six minutes to enter a date, or even three dates,
on one’s calendar. These types of entries are clerical in nature and are not billable time.”
See id.

        As the special master correctly noted in her decision, “[i]t is firmly rooted that
billing for clerical and other secretarial work is not permitted in the Vaccine Program.”
See id. (citing Rochester v. United States, 18 Cl. Ct. 379, 387 (1989); Mostovoy v. Sec’y
of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr.
Feb. 4, 2016)). Given the context of these entries, the court finds that the special
master’s conclusion that they reflect administrative tasks to be a reasonable one. As
such, she did not abuse her discretion in reducing the award accordingly.

        Petitioner also claims that the special master inappropriately reduced the fee
award by ten percent on certain research tasks and block-billed entries. As an initial
matter, the special master noted that she “considers most of the hours included on the
billing entry to be reasonable.” See ECF No. 42 at 6. Nevertheless, she categorized a
number of entries related to Florida state law and fees recovery as counsel’s efforts at
“educating herself in the law,” and therefore “uncompensable.” See id. at 6 (citing
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“Hours that are not properly billed to


                                             4
one’s client are also not properly billed to one’s adversary pursuant to statutory
authority.”)).

       Petitioner acknowledges that courts may reduce fee awards when an attorney bills
time for learning the law. See ECF No. 44 at 12-13. She argues, however, that the
research at issue here was sufficiently case-specific that the fee award should not be
discounted. See id. at 13. Locating the line between billable and educational, non-
billable research is an appropriate exercise of the special master’s discretion in awarding
fees. Because the special master applied the correct legal principle and provided a
factual basis for her decision to moderately reduce counsel’s recovery for research time,
she did not abuse her discretion.

       Finally, petitioner takes issue with the special master’s reduction for block-billed
entries. She argues that “[f]ailing to employ a reasoned analysis of what constitutes
block billing, the Fees Decision improperly denied compensation for this work.” Id. at
14. She continues, “[t]here is no support for a ruling that all multi-hour billing is per se
unreasonable block billing and not compensable under § 15(e) [of the Vaccine Act].” Id.
But the special master made no such categorical ruling. To the contrary, she found that
petitioner’s counsel submitted block-billed entries that “made it impossible for the
undersigned to determine the amount of time each task took.” ECF No. 42 at 6. Noting
her duty to ensure that requested fees are reasonable, the special master concluded that
counsel’s billing entries did not contain sufficient detail. See id. Here again, the court
concludes that the special master appropriately employed her discretion in reducing the
fee award due to the lack of specificity in block billing.

       B.     The Special Master Did Not Err in Denying Future Guardianship and
              Guardian Ad Litem Costs

       In addition to making the foregoing reductions, the special master denied
petitioner recovery of future costs associated with maintaining a guardianship, and the
appointment of a guardian ad litem, as required by Florida state law. See id. at 8-10. In
doing so, petitioner contends the special master erred as a matter of law.

              1.     Future Guardianship Costs

       The special master’s decision to deny future costs associated with maintaining the
guardianship at issue rests primarily on her conclusion that the requested future costs
will not be incurred pursuant to the present proceedings. “The Vaccine Act limits the
amount of ‘compensation to cover petitioner’s . . . costs’ to those ‘incurred in any
proceeding on [a Vaccine Act] petition.’” Id. at 9 (citing 42 U.S.C. § 300aa-15(e)(1)).
An expense is “incurred” as part of a vaccine proceeding when the service provided for
that expense is “ordered by this court and accomplished as part of the process of
providing reasonable compensation to petitioner.” Id. (citing Ceballos v. Sec’y of


                                             5
Health & Human Servs., No. 99-97V, 2004 WL 784910, at *22 (Fed. Cl. Spec. Mstr.
Mar. 25, 2004)).

       Here, petitioner’s duty to maintain the guardianship beyond the present
proceedings finds its source not in any order from the special master or any requirement
under the Vaccine Act, but rather, in a Florida state law that is not dependent on, or
specific to, vaccine actions. See Fla. Stat. § 744.387(2). The special master explained:

       Here, the undersigned’s decision awarding damages only recognized the
       establishment of N.S.’s guardianship, not the maintenance of it, as an
       essential prerequisite for N.S.’s guardian to receive the award. Petitioner’s
       but for assertion overlooks the criterion distinguishing costs incurred for
       obtaining authorization as a legal representative, which is required under the
       Act, to establish a guardianship, which is required at respondent’s behest in
       a stipulation, from those costs incurred for maintaining the guardianship,
       which is not.

ECF No. 42 at 9. The special master also notes that petitioner’s request is deficient
because the amount requested is both speculative and inaccurate, seeking fourteen years
of future fees and costs despite the fact that the minor child will attain the age of
majority in twelve years.

        The court agrees with the special master’s judgment in this case. Petitioner is not
entitled to recover any and all costs that may be incurred in the future, regardless of the
reason for the expenditure. The court will not expand the scope of the Vaccine Act to
include costs incurred beyond what is required by the special master or the Act itself.

              2.     Guardian Ad Litem Costs

        Finally, petitioner claims that she is entitled to recover the costs incurred in
connection with the appointment of a guardian ad litem, another requirement under
Florida state law. See ECF No. 44 at 12-14. In her decision, the special master stated
that the guardian ad litem served “in the Florida state court proceeding to facilitate the
appointment of a guardianship process.” ECF No. 42 at 10. Specifically, the special
master concluded that “[a]lthough the Florida Guardianship Law requires appointment
of a guardian ad litem to protect a minor’s interests, it was unrelated to the vaccine
petition and establishing the biological father as a legal representative of N.S.” Id. As
such, the fees “were not incurred as part of a ‘proceeding on [a Vaccine Act] petition’ as
the statue requires.” Id. (quoting 42 U.S.C. § 300aa-15(e)(1)).

       Petitioner argues that the special master mischaracterized the role of the guardian
ad litem when she stated that the guardian ad litem facilitated the establishment of a
guardianship process. See ECF No. 44 at 16. Instead, petitioner explains, Florida state


                                             6
law requires the appointment of a guardian ad litem to review settlements of claims
involving minors when the amount at issue equals or exceeds $50,000. See id. at 17
(citing Fla. Stat. § 744.3025). The court acknowledges that the special master’s
characterization of the guardian ad litem’s role was imprecise. That semantic
imprecision notwithstanding, her analysis is correct. The role of the guardian ad litem
was both required by and defined by Florida state law, wholly apart from the
requirements of the Vaccine Act. Because the Vaccine Act compensates parties for the
expenditures required under the Act, see 42 U.S.C. § 300aa-15(e)(1)(B), petitioner is not
entitled to recover the costs associated with the appointment of the guardian ad litem in
this case.

IV.    Conclusion

        For the foregoing reasons, the court finds that the special master’s reductions to
the attorneys’ fees award were permissible under the Vaccine Act. In addition, the court
finds that the special master’s denial of fees and costs incurred pursuant to Florida state
law and unrelated to the requirements of the special master or the Vaccine Act, is a
correct interpretation of the law. Accordingly,

       (1)    Petitioner’s motion for review, filed January 4, 2018, ECF No. 44, is
              DENIED;

       (2)    The special master’s decision, filed December 5, 2017, ECF No. 42, is
              SUSTAINED;

       (3)    The clerk’s office is directed to ENTER final judgment in accordance
              with the special master’s decision of December 5, 2017; and

       (4)    The parties shall separately FILE any proposed redactions to this
              opinion, with the text to be redacted clearly marked out or otherwise
              indicated in brackets, on or before June 13, 2018.


       IT IS SO ORDERED.


                                              s/Patricia Campbell-Smith
                                              PATRICIA CAMPBELL-SMITH
                                              Judge




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