In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0018V
Filed: March 29, 2018
UNPUBLISHED
AMANDA ROETTO,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Franklin John Caldwell,Jr., Maglio, Christopher & Toale, Sarasota, FL, for petitioner.
Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On January 5, 2016, Amanda Roetto (“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” or “Program”). 3 Petitioner alleges that she
suffered an injury to her left shoulder as a result of an influenza vaccination she
received on December 6, 2013. Petition at ¶¶ 1-8. On September 26, 2017, the
undersigned issued a decision denying petitioner’s claim for compensation and
dismissing for insufficient proof. (ECF No. 42).
On February 27, 2018, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 45). Petitioner requests attorneys’ fees in the amount of $21,733.90 and
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
3 The case was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
attorneys’ costs in the amount of $3,535.19. (Id. at 1). In compliance with General
Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-
pocket expenses. (Id. at 2). Thus, the total amount requested is $25,269.09.
On March 12, 2018, respondent filed a response to petitioner’s motion. (ECF No.
46). 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 March 12, 2018, petitioner filed a reply. (ECF No. 47). Petitioner argues that
respondent has provided no precise objection. (Id. at 2-3). Petitioner also argues that
she has met her burden of establishing reasonable fees and costs. (Id. at 3-4).
The undersigned has reviewed the billing records submitted with petitioner’s
request. Petitioner requests compensation for her attorney, Mr. Caldwell, at a rate of
$300 per hour for time billed in 2015, $356 per hour for time billed in 2016, and $367
per hour for time billed in 2017. (ECF No. 45-1 at 14). The undersigned finds no cause
to reduce these rates as they has been previously awarded to petitioner’s counsel.
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.
Health and Human Services, 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. HHS, 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. HHS, 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 are entitled
to hourly rates between $370 - $439 for work performed in 2018. 4
4 The Attorneys’ Fee Schedule for 2018 is available at http://www.cofc.uscourts.gov/node/2914
2
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
experience and analysis of the McCulloch factors as applied to Mr. Caldwell. Therefore,
the undersigned reduces the fee request by $9.00. 5
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 $25,260.09 6 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Franklin John Caldwell, Jr. Petitioner requests payment be forwarded to Maglio
Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida 34236.
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
5 This amount is calculated by reducing the requested rate by the awarded rate multiplied by hours billed.
($391 - $385 = $6 * 1.5 = $9.00).
6 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).
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.
3