         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-0468V
                                      Filed: June 22, 2018
                                         UNPUBLISHED


    NATHANIEL PAUL,

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

                       Respondent.


Franklin John Caldwell, Jr., 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 April 13, 2016, Nathaniel Paul (“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 from Guillain-Barré
syndrome (“GBS”) as a result of an influenza (“flu”) vaccine he received on September
18, 2013. Petition at 1-2. On November 14, 2017, the undersigned issued a decision
awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 47).

       On May 29, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 52). Petitioner requests attorneys’ fees in the amount of $26,900.10 and attorneys’
costs in the amount of $1,402.77. Id. at 1-2. In compliance with General Order #9,


1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. at 2. Thus, the total amount requested is $28,302.87.

        On June 11, 2018, respondent filed a response to petitioner’s motion. (ECF No.
53). 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 has filed no reply.

      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 Mr. Caldwell’s requested hourly rate of $391 for work performed in
2018, the undersigned finds the proposed rate 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 Servs, 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 and
Human Servs., 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. HHS, 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 and
Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991), aff’d in relevant part, 988 F.2d 131
(Fed.Cir.1993) (per curiam). Under the Court’s Fee Schedule, an attorney in the range
of 20-30 years of experience is entitled to hourly rates between $370 - $439 for work
performed in 2018. 3

       Mr. Caldwell was awarded a rate of $367 per hour for work performed in 2017.
An increase for 2018, based on the Producer Price Index for the “Office of Lawyers”
(PPI-OL), provided by the Department of Labor Bureau of Labor Statistics, would result
in a rate of $385.00 per hour, which is a more appropriate rate given the undersigned’s

3   The Attorneys’ Fee Schedule for 2018 is available at http://www.cofc.uscourts.gov/node/2914.

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experience and analysis of the McCulloch factors as applied to Mr. Caldwell. Therefore,
the undersigned reduces the fee request by $12.00. 4

        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, No. 02-10V, 2016
WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). Over 2 hours of time 5 was billed
for work performed by Mr. Caldwell and his paralegals for work that is considered
administrative overhead. Examples of these entries include December 1, 2015 (0.40
hrs) “Telephone call to multiple providers to obtain best method to receive medical
records request”; December 15, 2015 (0.20 hrs) “Mail medical records request to
Stafford Hospital due to failed attempts to faxing request”; April 20, 2016 (0.10 hrs)
“Telephone conference with legal copy service to arrange for production of documents”;
April 7, 2017 (0.10 hrs) “Email clerk’s office re: unknown “tag” on ECF filing screen”; and
January 3, 2018 (0.10 hrs) “Receipt and review of confirmation from UPS regarding the
delivery of the entitlement check. Forward same to client to confirm receipt.” (ECF 52-2
at 1, 2, 5, 11 and 13). The undersigned shall reduce the request for attorney fees in the
amount of $335.50.

      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 $27,955.37 6 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Franklin John Caldwell. Petitioner requests payment be forwarded to Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida, 34236.




4 This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed.
($391 - $385 = $6 * 2.0 = $12.00).

5Entries of administrative time occurred on the following dates: December 1, 2015; December 15, 2015;
April 20, 2016; April 25, 2016; June 6, 2016; April 7, 2017; and January 3, 2018.
6This 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).

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        The clerk of the court shall enter judgment in accordance herewith. 7

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




7 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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