In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-421V
Filed: August 31, 2017
Not for Publication
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G.G.M., a Minor, by and Through her *
Guardian Ad Litem, LORENA MORA, *
*
Petitioner, *
* Interim attorneys’ fees and costs
v. * decision; reasonable attorneys’ fees
* and costs; reduction for time billed
SECRETARY OF HEALTH * while travelling
AND HUMAN SERVICES, *
*
Respondent. *
*
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Anne C. Toale, Sarasota, FL, for petitioner.
Claudia B. Gangi, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1
On June 25, 2013, petitioner filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. §§ 300aa-10–34 (2012) alleging that her minor daughter, G.G.M., suffered
complete lower extremity paralysis and other injuries as a result of G.G.M.’s receipt of influenza
vaccine on September 5, 2012. On March 24, 2015, the undersigned issued a decision awarding
interim attorneys’ fees and costs to petitioner’s prior counsel, Mr. Danny Chia-Chi Soong.
On June 7, 2017, petitioner filed a motion for interim attorneys’ fees and costs on behalf of
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal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). Vaccine Rule 18(b) states that all
decisions of the special masters will be made available to the public unless they contain trade secrets or
commercial or financial information that is privileged and confidential, or medical or similar information
whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is
filed, petitioner has 14 days to identify and move to redact such information prior to the document’s
disclosure. If the special master, upon review, agrees that the identified material fits within the banned
categories listed above, the special master shall redact such material from public access.
her previous attorneys Mr. Peder Batalden and Mr. Scott Dixler for their work on her appeal to the
U.S. Court of Appeals for the Federal Circuit. Petitioner seeks $139,712.50 in attorneys’ fees and
$1,056.97 in attorneys’ costs, for a total request of $140,769.47.
On June 20, 2017, respondent filed a response to petitioner’s motion explaining he is
satisfied that this case meets the statutory requirements for an award of attorneys’ fees and costs
under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent “respectfully recommends
that the [undersigned] exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
Petitioner filed a reply to respondent’s response to her motion on June 22, 2017. In her
reply, petitioner argues that she has met her burden of establishing reasonable interim attorneys’
fees and costs.
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). The Federal Circuit ruled that interim fee awards are permissible
under the Vaccine Act in Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1352
(Fed. Cir. 2008). The special master has “wide discretion in determining the reasonableness” of
attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375
(Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519 (Fed. Cir.
1993) (“Vaccine program special masters are also entitled to use their prior experience in
reviewing fee applications.”). Furthermore, the special master may reduce fees sua sponte, apart
from objections raised by respondent and without providing petitioners notice and opportunity to
respond. See Sabella v. Sec’y of HHS, 86 Fed. Cl. 201, 208–09 (Fed. Cl. 2009).
Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds that the majority of petitioner’s interim attorneys’ fees and costs request is
reasonable. However, the undersigned will reduce petitioner’s award for travel time billed by
her counsel.
Petitioner's counsel billed a total of 16.4 hours of time at an hourly rate of $350.00 for
travel to and from Glendale, California and Washington, DC. Fee App. Ex. 2, at 18. It is well
established that travel time is compensated at 50 percent of counsel's hourly rate when the attorney
is not performing work while traveling. See, Carter v. Sec'y of HHS, No. 04–1500V, 2007 WL
2241877 (Fed. Cl. Spec. Mstr. July 13, 2007). There is no indication that petitioner’s counsel
performed work while traveling. Therefore, 16.4 hours of petitioner's counsel's time will be
compensated at a 50 percent rate. Accordingly, the undersigned reduces petitioner's award of
interim attorneys' fees and costs by $2,870.00.
The court awards $137,899.47, representing interim attorneys’ fees and costs. The award
shall be in the form of a check made payable jointly to petitioner and Maglio, Christopher & Toale
in the amount of $137,899.47.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
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court is directed to enter judgment herewith. 2
IT IS SO ORDERED.
Dated: August 31, 2017 /s/ Laura D. Millman
Laura D. Millman
Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3