Carney v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1321V
Filed: September 26, 2017
UNPUBLISHED
BRIAN CARNEY,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Diana Lynn Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, FL, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On October 11, 2016, 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 he suffered Guillain-Barre Syndrome (“GBS”) as
a result of his August 16, 2014 influenza (“flu”) vaccination. On August 11, 2017, the
undersigned issued a decision awarding compensation to petitioner based on
respondent’s proffer. (ECF No. 35.)
On September 20, 2017, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 39.) Petitioner requests attorneys’ fees in the amount of $17,192.40 and
attorneys’ costs in the amount of $1,266.12. (Id. at 1.) In accordance with General
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
Order #9, petitioner's counsel represents that petitioner incurred no out-of-pocket
expenses. Thus, the total amount requested is $18,458.52.
On September 22, 2017, respondent filed a response to petitioner’s motion.
(ECF No. 40.) 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 September 25, 2017, petitioner filed a reply. (ECF No. 41.) In his reply,
petitioner disputes respondent’s characterization of his role in resolving attorneys’ fees
and costs, objects to respondent’s failure to address specific issues, and reiterates
petitioner’s position that the amount requested is reasonable.
The undersigned has reviewed the billing records submitted with petitioner’s
request. On August 6, 2016, attorney Anne Toale billed 1.0 hour of travel time at her
full hourly rate of $367 per hour. (ECF No. 39-1, p. 3.) Consistent with routine practice
in this program, the undersigned reduces petitioner’s counsel’s hourly for this travel time
rate by 50%. See, e.g., Hocraffer v. HHS, No. 99-533V, 2011 WL 3705153, at *24
(noting that “Special masters consistently award compensation for travel time at 50% of
the billing rate in the Vaccine Program.”). This results in a reduction of $183.50. In the
undersigned’s experience, the request otherwise appears reasonable, and the
undersigned finds no further cause to reduce the requested hours or rates
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 $18,275.02 3 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Diana Lynn Stadelnikas, Esq.
The clerk of the court shall enter judgment in accordance herewith. 4
3 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).
4 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.
2
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3