            In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 12-754V
                                      Filed: January 5, 2018

 * * * * * * * * * * * * *                     *    *
 The Estate of EDUARDO ROSAS,                       *      PUBLISHED
 Decedent, by and through JENNY                     *
 ROSAS, as Personal Representative,                 *
                                                    *
                 Petitioner,                        *      Decision on Attorneys’ Fees and Costs;
 v.                                                 *      Estate Administration Fees and Costs
                                                    *
 SECRETARY OF HEALTH                                *
 AND HUMAN SERVICES,                                *
                                                    *
          Respondent.                               *
 * * * * * * * * * * * * *                     *    *

Isaiah R. Kalinowski, Esq., Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Ann D. Martin, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS 1

Roth, Special Master:

        On November 5, 2012, Eduardo Rosas (“Mr. Rosas”) filed a petition for compensation
under the National Vaccine Injury Compensation Program. 2 Mr. Rosas passed away on August
3, 2013, and on April 10, 2015, Jenny Rosas (“Mrs. Rosas” or “petitioner”) was substituted as
legal representative for his estate. ECF No. 43. Petitioner alleged that Mr. Rosas developed
and/or significantly aggravated transverse myelitis (“TM”) as a result of receiving an influenza
(“Flu”) vaccination on August 16, 2011, and died as a result of TM-related sequela. Amended
Petition (“Amend. Pet.”) at 1-2. ECF No. 82. Respondent denied causation; nevertheless, the


        1
          This decision will be posted on the United States Court of Federal Claims’ website, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided in 42 U.S.C §
300aa-12(d)(4)(B), however, the parties may object to the decision’s inclusion of certain kinds of
confidential information. To do so, each party may, within 14 days, request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, this decision will be
available to the public in its present form. Id.
        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).
parties stipulated to a damages award, and the undersigned issued a decision awarding damages
on July 28, 2017. See ECF No. 84.

         On October 10, 2017, petitioner filed a Motion for Attorneys’ Fees and Costs, requesting
attorneys’ fees in the amount of $91,165.40, and costs in the amount of $31,812.59, for a total of
$122,977.99. Motion for Fees, ECF No. 89. In addition to her request for fees and costs for her
vaccine attorney, petitioner requested a total of $12,306.17 in attorneys’ fees and costs associated
with her efforts to “open an estate for Decedent” in three different states. Id. at 2-3. According
to petitioner’s attorney, after Mr. Rosas’s death, “it appeared that his elderly parents”—who live
in Florida—were the proper parties to be appointed as representatives of his estate. Mr. Rosas
lived with and was cared for by his parents toward the end of his life, in Florida. Petitioner’s
counsel retained a Florida attorney (Patricia Hernandez) to represent them in that appointment,
incurring fees of $1,894.00. Pet. Ex. 72 at 5-6; Pet. Ex. 69 at 2. According to petitioner’s
vaccine attorney, “[i]t soon became apparent” that Mrs. Rosas, Mr. Rosas’s widow, “retained a
superior claim to act as personal representative.” Pet. Ex. 72 at 6. According to petitioner’s
counsel, Mr. and Mrs. Rosas “split their time between” New York and Pennsylvania, and Mrs.
Rosas initially sought appointment as the representative of the estate in New York, through a
New York attorney (Theresa Agunwa). Id. The New York state court judge apparently found
Mr. Rosas’s New York ties to be insufficient, however, after repeated efforts to produce
evidence showing sufficient ties, “the state court judge was not persuaded.” Id. “Mrs. Rosas
terminated her relationship” with Ms. Agunwa after paying a $1,500.00 retainer and incurring
$1,666.67 in fees. 3 Id.; Pet. Ex. 70 at 1-3. Mrs. Rosas was later successfully appointed as the
representative of the estate of Mr. Rosas in Pennsylvania through a Pennsylvania attorney
(William Reaser, Jr.). Mrs. Rosas paid Mr. Reaser a $1,500.00 retainer. Pet. Ex. 72 at 7. Mr.
Reaser also billed an additional $2,225.00 in fees as well as several costs—a $120.50 court filing
fee (paid by Mrs. Rosas), $25.00 in court costs, and $3,375.00 in estate inheritance taxes. Pet.
Ex. 71 at 1-4. 4

The Court’s Order for Further Information on Petitioner’s Application for Fees and Costs

        Following review of petitioner’s Motion for Fees, the undersigned issued an Order on
October 12, 2017, noting that the Vaccine Act provides that a special master “may award an
amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred
in any proceeding on [a] petition,” 42 U.S.C. § 300aa-15(e)(1) (emphasis added), and that the
petitioner bears the burden to “present adequate proof at the time of submission of the fee
application” that the fees and costs are compensable, Sabella v. Sec’y of Health & Human Servs.,
86 Fed. Cl. 201, 205 (2009) (citation and alteration omitted). Order, ECF No. 90. Accordingly,

        3
          Petitioner’s retainer agreement with Ms. Agunwa stated that “the fee for the legal services
relating to this matter will be billed from the recovery/settlement from the Vaccine Injury Compensation
Trust Fund at the rate of $250.00 an hour” and that the $1,500.00 retainer fee would “be deducted from
portion [sic] of our fees from the recovery from [the] Vaccine Injury Compensation Trust Fund.” Pet. Ex.
66 at 5. Thus, in signing this retainer agreement, Mrs. Rosas agreed to pay the attorneys’ fees from the
recovery in this matter.
        4
         Petitioner’s retainer agreement with Mr. Reaser provided an hourly billing rate of $400.00 for
court appearances and $250.00 for non-court matters. Pet. Ex. 66 at 7.

                                                    2
petitioner was ordered to file a supplement to her Motion for Fees explaining the basis for
awarding the following expenditures: (1) the fees charged by Ms. Hernandez and Ms. Agunwa in
connection with the two “abortive attempt[s] to open an estate”; (2) the fees charged by Mr.
Reaser for estate work that he performed after petitioner obtained authorization as personal
representative; and (3) the estate inheritance taxes. Id.

                           Petitioner’s Response to the Court’s Order

         On November 11, 2017, petitioner filed a Supplemental Brief to her Motion for Fees.
Supp. Brief, ECF No. 91. As to the Florida filing, petitioner’s attorney submitted that Mr.
Rosas’s parents “expressed [an] earnest desire to pursue this Petition.” Id. at 3. They also
represented that Mr. Rosas died intestate and had divorced Mrs. Rosas prior to his death. Id.
Petitioner’s attorney submitted that he had no “way to contact [Mrs. Rosas] to confirm this
information,” 5 and the “factual information available at the time” indicated that Florida was the
appropriate venue. Id. at 4. However, after “appropriate notice was given to potential
claimants,” Mrs. Rosas objected, stating that she had a superior claim as personal
representative.” Id. at 3. According to petitioner’s counsel, “the divorce proceedings referenced
by Mr. Rosas’[s] parents had been filed but never completed.” Id. at 4. Given that Mr. and Mrs.
Rosas had previously lived in New York, Mrs. Rosas believed that New York was the
appropriate venue, and petitioner’s counsel advised her to retain a New York estate attorney. Id.
Mrs. Rosas did so. According to petitioner’s counsel, he and the New York attorney were
“bewildered” when the New York judge denied the claim for insufficient contacts. Id. at 4. Mrs.
Rosas then turned to Pennsylvania, where, “[u]nbeknownst to Petitioner’s Counsel up to that
point, Mr. Rosas had been in the process of transitioning his residence” before his vaccination. 6
Id. at 5.

        With respect to the second question raised in the Court’s order—regarding the fees and
costs related to administration of the estate in Pennsylvania—petitioner argued that costs
incurred for administering an estate are compensable based on a “but for” test, noting that
petitioner had “no other reason to open an estate other than” to pursue this case. Id. at 6-8 (citing
Ceballos ex rel. Ceballos v. Sec’y of Health & Human Servs., No. 99-97V, 2004 WL 784910
(Fed. Cl. Spec. Mstr. Mar. 25, 2004)).

        With respect to the third question—regarding estate inheritance estate taxes—petitioner
cited two cases purporting to award costs sufficient to satisfy state taxes. Id. at 9 (citing Horner
v. Sec’y of Health & Human Servs., No. 15-0395V, 2016 WL 8786191 (Fed. Cl. Spec. Mstr.
Dec. 15, 2016); Carda v. Sec’y of Health & Human Servs., No. 14-191V, 2016 WL 5224406
(Fed. Cl. Spec. Mstr. Aug. 19, 2016)).

      On November 26, 2017, respondent filed a response to petitioner’s Motion for Fees.
Respondent did not oppose the request in substance, but instead asked that the undersigned

        The medical records filed in this case list Mrs. Rosas as Mr. Rosas’s “spouse” and provide her
        5

home address in Pennsylvania as well as two telephone numbers. See, e.g., Pet. Ex. 16 at 5.
        6
          Mr. Rosas’s vehicles were registered in Pennsylvania, and he had a Pennsylvania driver’s
license at the time he received the allegedly culpable vaccine. Supp. Brief, ECF No. 91, at 5.

                                                   3
exercise her discretion in determining the proper amount to be awarded. ECF No. 92. Petitioner
filed a reply to respondent’s Response on December 1, 2017. ECF No. 93.

                                   I. Applicable Legal Standards

        The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys’ fees
is automatic. Id.; see Sebelius v. Cloer, 569 U.S. 369, 373 (2013). However, a petitioner need
not prevail on entitlement to receive a fee award as long as the petition was brought in “good
faith” and there was a “reasonable basis” for the claim to proceed. § 15(e)(1).

         The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, [t]he
initial estimate of a reasonable attorney’s fee” is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id. at 1347-48 (quoting
Blum v. Stenson, 465 U.S. 886, 888 (1984)). That product is then adjusted upward or downward
based on other specific findings. Id.

        A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 1348
(quoting Blum, 465 U.S. at 896 n.11). This rate is based on “the forum rate for the District of
Columbia” rather than “the rate in the geographic area of the practice of petitioner’s attorney.”
Rodriguez v. Sec’y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing
Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for attorneys’ fees to be
awarded at local hourly rates when “the bulk of the attorney’s work is done outside the forum
jurisdiction” and “there is a very significant difference” between the local hourly rate and forum
hourly rate. Id. This is known as the Davis County exception. See Hall v. Sec’y of Health &
Human Servs., 640 F.3d 1351, 1353 (Fed. Cir. 2011) (citing Davis Cty. Solid Waste Mgmt. &
Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)). For cases
in which forum rates apply, McCulloch provides the framework for determining the appropriate
hourly rate range for attorneys’ fees based upon the attorneys’ experience. See McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1,
2015). The Office of Special Masters has issued a fee schedule that updates the McCulloch rates
to account for inflation in subsequent years. 7

         Once the applicable hourly rate is determined, it is applied to the “number of hours
reasonably expended on the litigation.” Avera, 515 F.3d at 1348. The application for fees and
costs must “sufficiently detail and explain the time billed so that a special master may determine
. . . whether the amount requested is reasonable,” and an award of attorneys’ fees may be
reduced for “vagueness” in billing. J.W. ex rel. Wilson v. Sec’y of Health & Human Servs., No.
15-1551V, 2017 WL 877278, at *4 (Fed. Cl. Spec. Mstr. Feb. 10, 2017). Moreover, counsel

        7
         This fee schedule is posted on the court’s website. See Office of Special Masters, Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.

                                                    4
should not include in their fee requests hours that are “excessive, redundant, or otherwise
unnecessary.” Saxton ex rel. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed.
Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “Unreasonably duplicative
or excessive billing” includes “an attorney billing for a single task on multiple occasions,
multiple attorneys billing for a single task, attorneys billing excessively for intra office
communications, attorneys billing excessive hours, [and] attorneys entering erroneous billing
entries.” Raymo v. Sec’y of Health & Human Servs., 129 Fed. Cl. 691, 703 (2016).

        Furthermore, some tasks are generally compensated at a reduced rate. Attorneys who
perform non-attorney-level work are compensated at a rate comparable to what would be paid for
a paralegal or secretary. See O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015
WL 2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Hours spent traveling are ordinarily
compensated at one-half of the normal hourly attorney rate. See Scott v. Sec’y of Health &
Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec. Mstr. June 5, 2014)
(collecting cases). Finally, some tasks are never compensable. For instance, “it is inappropriate
for counsel to bill time for educating themselves about basic aspects of the Vaccine Program.”
Matthews v. Sec’y of Health & Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl.
Spec. Mstr. Apr. 18, 2016). And clerical and secretarial tasks should not be billed at all,
regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Non-
compensable clerical and secretarial tasks include making travel arrangements, reviewing and
paying invoices, setting up meetings, organizing files, scheduling conference calls, and
reviewing files for consistency. J.W., 2017 WL 877278, at *3; Barry v. Sec’y of Health &
Human Servs., No. 12-039V, 2016 WL 6835542, at *4 (Fed. Cl. Spec. Mstr. Oct. 25, 2016).

        It is “well within the Special Master’s discretion to reduce the hours to a number that, in
[her] experience and judgment, [is] reasonable for the work done.” Saxton, 3 F.3d at 1522. In
exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 728-29 (2011) (affirming special master’s reduction of attorney and paralegal
hours); Guy v. Sec’y of Health & Human Servs., 38 Fed. Cl. 403, 406 (1997) (same). Ultimately,
special masters have substantial discretion in awarding fees and costs, and may adjust a fee
request sua sponte, apart from objections raised by respondent and without providing petitioners
with notice and opportunity to respond. 8 See Sabella v. Sec’y of Health & Human Servs., 86

        8
          In her reply to respondent’s response, petitioner claims that because respondent did not object to
petitioner’s motion for fees and costs, “the Court may properly consider the fees and costs to be
unopposed and grant them without further analysis.” ECF No. 93 at 2. Although respondent’s lack of
opposition could arguably amount to a waiver of any future objections to this decision, the Vaccine Act
permits an award of “reasonable” attorneys’ fees and costs, § 15(e)(1) (emphasis added), which “compels
each special master to determine independently whether a particular request is reasonable.” Savin ex rel.
Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 318 (2008). “This obligation is not
suspended—nor the sound discretion and common sense that underlie it rendered inoperable—merely
because respondent failed to object.” Id.; see, e.g., Scharfenberger v. Sec’y of Health & Human Servs.,
124 Fed. Cl. 225, 234 (2015); Morse v. Sec’y of Health & Human Servs., 93 Fed. Cl. 780, 792 (2010).
Rather, the petitioner bears the burden of showing that a request for fees is reasonable, and that burden
must be satisfied “at the time [the] petitioner submits an application for attorneys’ fees.” Rodriguez v.
Sec’y of Health & Human Servs., 91 Fed. Cl. 453, 479-80 (2010), aff’d, 632 F.3d 1381 (Fed. Cir. 2011).
Any possible “misperceptions regarding fees or costs” (ECF No. 93 at 3) should therefore be addressed in

                                                     5
Fed. Cl. 201, 209 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. See Broekelschen, 102 Fed. Cl. at 729.

                                               II. Discussion

A.      Vaccine Attorneys’ Fees

        Petitioner requests $91,165.40 in attorneys’ fees for work performed by her vaccine
attorneys. Pet. Ex. 67. The requested hourly forum rates, see id. at 38, are consistent with the
rates previously found to be reasonable in cases involving petitioner’s counsel. See, e.g., Stewart
v. Sec’y of Health & Human Servs., No. 12-776V, 2017 WL 2807955, at *2 (Fed. Cl. Spec. Mstr.
May 30, 2017). Therefore, the undersigned finds the requested rates to be reasonable.

        The hours expended, however, must be reduced, as a number of the hours billed were
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. 9 There are tasks
billed which fall within the category of non-compensable clerical or secretarial work, such as
reviewing and paying invoices, making travel arrangements, and setting up meetings. 10 There
are also instances of duplicative billing, 11 as well as entries for tasks that are vague in description
and do not provide any basis for determining their reasonableness. 12 Finally, petitioner’s counsel
billed several hours for travel at his full hourly rate, despite being unable to “take out work
materials to work.” Pet Ex. 67 at 10. 13 As noted above, an “attorney will not be compensated at
his or her full hourly rate for travel time” without “documentation of the work performed by

the motion for fees; special masters are “not obliged to offer petitioners’ counsel a second chance to do
what he should have done ab initio.” Savin, 85 Fed. Cl. at 317; see, e.g., Valdes v. Sec’y of Health &
Human Servs., 89 Fed. Cl. 415, 424 (2009); see also Masias v. Sec’y of Health & Human Servs., 634 F.3d
1283, 1292 n.10 (Fed. Cir. 2011) (rejecting the argument that “the special master’s ‘inquisitorial’ mode of
adjudication” in determining a fee award deprived the petitioner of “an opportunity to challenge the
evidence that the special master relied upon”).
        9
            The following entries are examples and are not exhaustive; they merely provide a sampling.
        10
           See, e.g., Pet. Ex. 67 at 1 (“Review and approve invoice for medical records”); id. at 2 (“review
and organize medical records”); id. at 5 (“Update client contact file”); id. at 9 (“Make travel arrangements
for in-person client visit”); id. at 11 (“Update client file”); id. at 17 (“Receipt and review of Scheduling
Order, calendar deadlines and update file accordingly”); id. at 20 (“Review and approve payment to
Process Xpress for services of process”); id. at 21 (“Prepare shipping labels”); id. at 23 (“Review,
process, and prepare medical records”); id. at 28 (“Finalize payment for medical literature”).
        11
           See, e.g., Pet. Ex. 67 at 2 (“Review electronic notice re medical records”); id. (“Review
electronic notice re medical records”); id. at 7 (“Telephone conference with process service”); id.
(“Telephone conference with process service”); id. at 8 (“Review and organize medical records”); id.
(“Review and organize medical records”).
         See, e.g., Pet. Ex. 67 at 21 (“Determine language for Misc Action”); id. (“Misc Action; revise
        12

Misc Action”); id. at 33 (“Review file for valid authorization”).
        13
           See, e.g., Pet. Ex. 67 at 10 (“Check into flight electronically. Save baggage fee receipt to file”);
id. (“Drive from client’s home to hotel”); id. (“Travel to Miami for in-person meeting with client (does
not include time spent in the air or in airports working on this or other cases). One connection flight
schedule, but with major travel delay (1 hr. +) where I could not take out work materials to work”).

                                                      6
[the] attorney while he or she was traveling”; instead, that time should be billed “at one-half the
standard hourly rate.” O’Neill, 2015 WL 2399211, at *7.

      For these reasons, the undersigned finds that the requested $91,165.40 should be reduced
by 10%. Accordingly, $82,048.86 is awarded in attorneys’ fees.

B.     Vaccine Attorneys’ Costs

        Petitioner requests a total of $31,812.59 in costs incurred by her vaccine attorneys. Pet.
Ex. 68. This amount includes the $1,894.00 paid by her vaccine attorneys to Ms. Hernandez,
which is not compensable for the reasons explained below. The remaining requested costs
consist of the filing fee, shipping cost, medical record fees, and expert fees. These costs are
reasonable. Accordingly, the undersigned awards $29,918.59 for costs incurred by petitioner’s
vaccine attorneys.

C.     Estate Attorneys’ Fees and Costs

        Petitioner seeks $12,306.17 in fees and costs charged by her estate attorneys. First,
petitioner requests compensation for the work performed by the three estate attorneys. Ms.
Hernandez (the Florida estate attorney) billed $1,894.00 in attorney fees, which have been paid
by petitioner’s vaccine attorneys. Pet. Ex. 69. Ms. Agunwa (the New York estate attorney)
billed $3,166.67—a $1,500.00 retainer fee paid by petitioner herself and $1,666.67 in unpaid
attorney fees. Pet. Ex. 70. And Mr. Reaser (the Pennsylvania estate attorney) billed $3,725.00—
a $1,500.00 retainer paid by petitioner and $2,225.00 in unpaid attorney fees. Pet. Ex. 71.
Second, petitioner seeks compensation for estate costs: $120.50 in filing fees in Pennsylvania
state court, which petitioner paid on the date she opened the estate; $25.00 in court costs that
were paid by Mr. Reaser; and $3,375.00 in estate inheritance taxes, also paid by Mr. Reaser. Id.
Some of these costs are compensable; others are not.

        The fees charged by Ms. Hernandez are not compensable. “[C]osts are not to be awarded
for work that is not necessary to a case,” and “unnecessary or excessive costs” are to be
disallowed “in their entirety.” Scharfenberger v. Sec’y of Health & Human Servs., No. 11-221V,
2015 WL 3526559, at *13 (Fed. Cl. May 15, 2015), aff’d, 124 Fed. Cl. 225 (2015). Here, it is
not clear why Ms. Hernandez’s fees and costs were necessary nor appropriate. Petitioner’s
vaccine attorney’s attempts to obtain representative authority for Mr. Rosas’s parents by hiring
Ms. Hernandez was contrary to petitioner’s case. When Mr. Rosas’s vaccine attorney was hired,
Mr. Rosas was married and living in Pennsylvania. The medical records list Mrs. Rosas as Mr.
Rosas’s “spouse” and provide Mrs. Rosas’s address in Pennsylvania as well as two telephone
numbers. Pet. Ex. 16 at 5. Had petitioner’s attorney performed some simple investigation to
confirm whether the Rosas’s were in fact married or divorced, these costs would not have been
incurred. Petitioner’s attorney admits having accepted representations made by Mr. Rosas’s
parents, when a phone call to Mrs. Rosas would have yielded important and necessary
information. Petitioner’s attorney states that he had no way to contact Mrs. Rosas, yet admits
that upon appropriate notice to potential claimants of the filing in Florida, Mrs. Rosas was served
and objected, stating that she had the appropriate claim as the representative. Apparently, there
was no difficulty in determining Mrs. Rosas’s whereabouts in order to serve her with the papers

                                                 7
to which she objected. Mr. Rosas’s parents were not the correct parties to serve as
representatives in this case, and the costs incurred would not have been spent if petitioner’s
vaccine attorney had done some simple investigation. This extraneous (and unsuccessful) work
performed by Ms. Hernandez on behalf of someone other than petitioner constitutes
“unnecessary or excessive costs” that will not be awarded. Therefore, $1,894.00 will be
deducted from petitioner’s vaccine attorneys’ costs.

        The fees and costs billed by Ms. Agunwa and Mr. Reaser are awarded to the extent they
were incurred in seeking to appoint petitioner as legal representative over Mr. Rosas’s estate.
The Vaccine Act limits the amount of “compensation to cover petitioner’s . . . costs” to those
“incurred in any proceeding on [a Vaccine Act] petition.” § 15(e)(1). Such costs often include
those that form “‘an essential prerequisite condition’ to obtaining an award that must ‘be fulfilled
in order for [the] award to be made.’” Bennett v. Sec’y of Health & Human Servs., No. 15-65V,
2017 WL 3816094, at *3 (Fed. Cl. Spec. Mstr. Aug. 7, 2017) (quoting Haber ex rel. Haber v.
Sec’y of Health & Human Servs., No. 09-458V, 2011 WL 839111, at *2 (Fed. Cl. Spec. Mstr.
Feb. 14, 2011)). Thus, the costs incurred in appointing a legal representative of the estate, which
was a necessary requirement for the petition to proceed, will be awarded. See § 11(b)(1)(A). In
this case, a petition was pending at the time of Mr. Rosas’s death; to proceed further with the
case, petitioner was required to be appointed as the legal representative of the estate in order to
stand in the shoes of the decedent and proceed with the claims alleged in the petition. However,
“fees and costs concerning the administration of [an] estate” are “disallowed because they were
not incurred in any proceeding on the petition.” Bennett, 2017 WL 3816094, at *5 (emphasis
added) (quoting Mol v. Sec’y of Health & Human Servs., 50 Fed. Cl. 588, 591 (2001)); see also
Siegfried v. Sec’y of Dep't of Health & Human Servs., 19 Cl. Ct. 323, 325 (1990).

        Moreover, the $3,375 in estate inheritance taxes is not compensable under the Act.
Although petitioner cites cases from other special masters awarding “similar state taxes,” see
Supp. Brief, ECF No. 91 at 9, those cases are not binding on other special masters, and the
statutes under consideration in those cases are readily distinguishable from the case at bar. The
cases cited by petitioner involved state sales taxes on attorneys’ fees, while this case involves
estate inheritance taxes. Petitioner fails to offer any basis—apart from an unsupported assertion
of “similar[ity]”—that awarding $3,375.00 in estate inheritance taxes is reasonable or a cost that
should be paid for by the Vaccine Program as they are not fees and costs associated with the
petition. See Mol, 50 Fed. Cl. at 588, 591; Siegfried, 19 Cl. Ct. at 323, 325.

        In sum, the following fees were incurred in establishing (or attempting to establish)
petitioner as the legal representative of the estate and will be awarded: $3,166.67 for the work
performed by Ms. Agunwa in New York ($1,500.00 reimbursed to Mrs. Rosas for the retainer
and $1,666.67 in additional fees to Ms. Agunwa); $1,175.00 for the work performed by Mr.
Reaser prior to and including petitioner’s appointment as legal representative of the estate (4.7
hours at $250 per hour from February 3, 2015, through February 25, 2015, reimbursed to Mrs.
Rosas on her $1,500.00 retainer); and $120.50 in court costs awarded to petitioner. The fees and
costs incurred after petitioner was appointed as the legal representative of the estate, including
the remaining $2,550.00 in attorneys’ fees for the administration of the estate and those tasks
attendant thereto, and the $3,520.00 submitted representing estate taxes billed by Mr. Reaser, are



                                                 8
not compensable as they are not fees and costs associated with the petition. See Mol, 50 Fed. Cl.
at 588, 591; Siegfried, 19 Cl. Ct. at 323, 325.

                                    III. Total Award Summary

       Based on the foregoing, the undersigned GRANTS IN PART petitioner’s Motion for
Attorneys’ Fees and Costs. Accordingly, the undersigned awards the following: 14

       $111,967.45, representing $82,048.86 in attorneys’ fees and $29,918.59 in attorneys’
        costs, in the form of a check payable jointly to petitioner and petitioner’s counsel,
        Isaiah R. Kalinowski, Esq;

       $2,795.50, representing the $1,500.00 retainer to Ms. Agunwa, $1,175.00 in attorneys’
        fees incurred for work performed by Mr. Reaser prior to and including establishing the
        estate, and $120.50 in court costs, in the form of a check payable to petitioner, Jenny
        Rosas; and

       $1,666.67, representing attorneys’ fees incurred in attempting to establish the estate, in
        the form of a check payable jointly to petitioner and petitioner’s estate attorney,
        Theresa E. Agunwa, Esq.

        The clerk shall enter judgment accordingly. 15

        IT IS SO ORDERED.

                                                        s/ Mindy Michaels Roth
                                                        Mindy Michaels Roth
                                                        Special master




        14
           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 Beck v. Sec’y of Health &
Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
        15
          Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a
notice renouncing the right to seek review.

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