In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0301V
(not to be published)
KRISTEN MOORBY,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 21, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs; Post-
Judgment Relief; Non-Admitted
Respondent. Counsel; Fees Related to Prior Civil
Action; Fees for General Research
Phyllis Widman, Jacobs & Barbone, Atlantic City, NJ, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On February 28, 2018, Kristen Moorby filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). She alleged that she suffered a syncopal episode upon receiving tetanus-
diphtheria-acellular pertussis, Hepatitis A, and Typhoid vaccinations on June 3, 2016,
which resulted in injuries, including “abrasions on her face, on her right knee, bruising on
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required 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). This means the decision will be available to anyone with access to the
internet. 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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
her left knee, and a scratch on her left shoulder.” Petition at 2. On November 19, 2019, a
decision was issued awarding compensation to Petitioner based on the Respondent’s
proffer. ECF No. 39. On February 4, 2020, I awarded Petitioner $31,890.52 in attorney’s
fees and costs. Fee Decision, ECF No. 49.
On June 15, 2020, Petitioner filed a motion for post-judgment relief seeking the
additional amount of $8,175.00, representing attorney’s fees for work performed by the
first lawyer she retained, David K. Cuneo, Esq., from the Law Office of Cuneo & Leonetti
(“Cuneo & Leonetti”). Motion for Post-Judgment Relief (“Motion”), ECF No. 53. For the
reasons stated below, I hereby grant Petitioner’s motion in part, awarding the additional
amount of $3,900.00 for the work performed by Mr. Cuneo.
I. Relevant Procedural History
Petitioner filed a motion for a final award of attorney’s fees and costs on December
18, 2019. ECF No. 43. In it, Petitioner requested $696.95 in costs incurred by Cuneo &
Leonetti, the firm she initially retained to pursue a civil action against the vaccine
administrator. List of Costs, labeled as Exhibit C, ECF No. 43-3. On January 21, 2020,
Petitioner was asked to provide documentary substantiation for some of the requested
costs. On January 27, 2020, Petitioner filed an amended list requesting reimbursement
for $418.45 of these costs and providing required receipts. Amended List of Costs, filed
as Amended Exhibit C, ECF No. 48-1.
I thereafter granted Petitioner’s motion, awarding in full the attorneys’ fees and
costs requested, including the amended request for $418.45, representing costs incurred
by Cuneo & Leonetti. ECF No. 49. Judgment entered on February 5, 2020. ECF No. 51.
II. Petitioner’s Motion for Post-Judgment Relief
On June 15, 2020, Petitioner file a motion for post-judgment relief pursuant to
Vaccine Rule 36 and Rule 60(b) of the Rules of the United State Court of Federal Claims
(“RCFC”). Motion at 1. Characterizing the existence of prior counsel as a “unique situation
for Petitioner’s counsel, Phyllis Widman,” Petitioner represents that certain fees otherwise
recoverable under the Act were omitted from the prior fees request, and that I should
award them post-judgement. Id. On June 30, 2020, Respondent filed a response
indicating he “defers to the Court” to make this determination. ECF No. 54.
2
A. Legal Standard
Vaccine Rule 36(a) allows a party to file a motion for reconsideration pursuant to
RCFC 59, or to seek relief from judgment pursuant to RCFC 60. If the case was assigned
to a judge for review, the motion will be referred to the same judge. Vaccine Rule 36(a)(1).
Otherwise, the motion will be referred to the special master assigned to the case. Vaccine
Rule 36(a)(2).3
RCFC 59 and 60 are identical to Rules 59 and 60 of the Federal Rules of Civil
Procedure, making case law interpreting the similar rules equally relevant. In determining
whether a judgment should be set aside or altered, “the need for finality of judgments”
must be balanced against “the importance of ensuring that litigants have a full and fair
opportunity to litigate.” Kennedy v. Sec’y, HHS, 99 Fed. Cl. 535, 539 (2011) (citing United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 276 (2010); see also Bridgham by
Libby v. Sec’y, HHS, 33 Fed. Cl. 101, 104 (1995) (discussing the “tension between the
goals of ensuring that the court’s judgment appropriately reflects the adjudication of the
parties’ rights and of providing the parties with certainty as to those rights”).
Pursuant to RCFC 60(a), a court may correct “[c]lerical mistakes in judgments,
orders, or other parts of the record” at any time. Additionally, a party may request relief
from final judgment for the specific reasons listed in RCFC 60(b)(1)-(5) or the “catch all”
provision at RCFC 60(b)(6). Similar to RCFC 60(a), RCFC 60(b)(1) allows post-judgment
relief for “mistake, inadvertence, surprise, or excusable neglect.” I have previously
discussed the differences between RCFC 60(a) and RCFC 60(b)(1) in Williamsen v. Sec’y
of Health & Human Servs., No. 10-0223V, 2014 WL 1388894 (Fed. Cl. Spec. Mstr. Feb.
5, 2014).
B. Analysis
Petitioner indicates she is seeking post-judgment relief pursuant to RCFC 60(b)
but does not specify the exact subsection she believes is applicable to her case. Motion
at 1. However, she explains that attorney’s fees were not requested for work performed
by Mr. Cuneo due to a simple oversight. Id. Thus, the reason stated in RCFC 60(b)(1) is
arguably applicable to Petitioner’s case. I find, however, that the circumstances in this
case are similar to those in Williamsen. 2014 WL 1388894, at *1. There, I determined that
RCFC 60(a) is more applicable where (as here) the failure to include a specific cost or
fees element was merely attributable to a minor omission, and where the rectification of
3
This sharing of authority over judgments between judge and special master was determined to be
appropriate since the Vaccine Rule 36 procedure allows for immediate review of the special master’s ruling.
Vessels v. Sec’y of Health & Human Servs., 65 Fed. Cl. 563, 568 (2005).
3
that error would not result in a significant or substantive revision to the prior judgment. Id.
at *1-2.
Petitioner’s motion is therefore granted pursuant to RCFC 60(a). I find Petitioner is
entitled to an additional award of attorney’s fees for performed by Mr. Cuneo - but only
for the amounts billed which are appropriate under the Vaccine Act.
III. Appropriate Amount of Fees Awarded
Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” 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)). 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.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86
Fed. Cl. 201, 209 (2009).
The Federal Circuit has approved use of the lodestar approach to determine
reasonable attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health &
Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a
court first determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly rate.’”
Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may
make an upward or downward departure from the initial calculation of the fee award based
on other specific findings. Id. at 1348.
In her motion for post-judgment relief, Petitioner seeks an additional $8,175.00 in
attorney’s fees. Billing Records, labeled Exhibit E, filed as an attachment to Motion, at 2
ECF No. 53-1. This total is based upon 21.8 hours of time billed at a rate of $375.00 per
hour. Id. at 1-2.
4
A. Appropriate Hourly Rate
According to his law firm’s website, Mr. Cuneo has been barred in the States of
New Jersey and Pennsylvania since 1984.4 Thus, he has more than 30 years of
experience as an attorney but no experience in the Vaccine Program. Nevertheless, given
his overall level of experience as an attorney, I find the attorney hourly rate requested by
Petitioner, $375.00, to be reasonable.5
However, Mr. Cuneo is not admitted to practice before the United States Court of
Federal Claims (“CFC”). Under such circumstances, the Vaccine Program compensated
non-admitted counsel only at paralegal/clerical rates. See, e.g., Razka v. Sec’y of Health
& Human Servs., No. 14-1224V, 2017 WL 3165479, at *2-3 (Fed. Cl. Spec. Mstr. June
30, 2017); Mackey v. Sec’y of Health & Human Servs., No. 16-1289V, 2018 WL 3596801,
at *5-6 (Fed. Cl. Spec. Mstr. May 10, 2018); Schmidt v. Sec’y of Health & Human Servs.,
No. 17-0913V, 2020 WL 1528428, at *2 (Fed. Cl. Spec. Mstr. Feb. 25, 2020). At most, I
have awarded regular attorney hourly rates to non-barred counsel for work performed
before the vaccine petition was filed, but at non-attorney rates thereafter. Pearson v.
Sec’y of Health & Human Servs., No. 14-0489V, 2019 WL 7167552, at *4 (Fed. Cl. Spec.
Mstr. Oct. 29, 2019) (citing Avila v. Sec’y of Health & Human Servs., No. 14-605V, 2016
WL 6995372, at *2 (Fed. Cl. Spec. Mstr. Nov. 4, 2016).
I will award attorney’s fees for work performed by Mr. Cuneo at the attorney hourly
rate requested, $375.00, for work performed up to the February 2018 date of the Petition’s
filing.6 As it turns out, Petitioner has not requested fees for work performed by Mr. Cuneo
after the Petition was filed, and he spent no other time on the matter in early 2018.
B. Appropriate Hours
Petitioner requests attorney’s fees based upon 81.2 hours of time expended by
Mr. Cuneo. However, a review of the billing records submitted shows much of this time
was expended on work for which attorney’s fees are not paid under the Act.
4
See https://www.cuneolawoffice.com/attorney/david-k-cuneo (last visited Aug. 19, 2020).
5
See Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2015 – 2016 at
www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf (last visited
on Aug. 21, 2020); Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2017 at
www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2017.pdf (last visited on
Aug. 21, 2020).
6
See Office of Special Masters Attorneys’ Forum Hourly Rate Fee Schedule: 2017 at
www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2017.pdf (last visited on
Aug. 21, 2020).
5
i. Civil Action
Under the Vaccine Program, reasonable attorneys’ fees and costs are limited to
those “incurred in any proceeding on [a] petition.” Section 15(e)(1); see also Krause v.
Sec’y of Health & Human Servs., No. 01-93V, 2012 WL 4477431, at *6 (Fed. Cl. Spec.
Mstr. June 20, 2012). But “research conducted to explore petitioner's civil remedies . . .
are not tasks related to the proceedings on this vaccine claim,” and thus, should not be
compensated. Krause, 2012 WL 4477431, at *6.
The following entries are for work performed by Mr. Cuneo which is related to
Petitioner’s civil action again Rite Aid Pharmacy:
2016: 6/8, 6/13, 6/16 (2nd entry), 6/29, 9/15 (.5 hours)7
2017: 2/14, 3/3 (2nd entry), 3/15, 4/24, 4/26, 4/27, 5/4, 6/10, 9/28, 10/15 (.5 hours).8
Exhibit E at 1-2. Because this time is not properly charged to the Vaccine Program, it will
be deducted from the hours billed before attorney’s fees are calculated.
ii. Research
“[I]t 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). “An inexperienced
attorney may not ethically bill his client to learn about an area of law in which he is
unfamiliar. If an attorney may not bill his client for this task, the attorney may also not bill
the Program for this task.” Carter v. Sec’y of Health & Human Servs., No. 04-1500V, 2007
WL 2241877, at *5 (Fed. Cl. Spec. Mstr. July 13, 2007).
The billing records reveal that on March 3, 2016, Mr. Cuneo expended 2.0 hours
reviewing research regarding the Vaccine Program and engaging in discussions with
Petitioner and “Vaccine Counsel.”9 Exhibit E at 1. I will award attorney’s fees only for the
time spent in discussion. One hour of this time will be subtracted before attorney’s fees
are calculated.
7
Only one of the three tasks listed for this entry appears to be related to the civil action. Thus, I will not
award attorney’s fees for one-third of this time, 0.5 hours out of the total 1.5 hours billed. Exhibit E at 1.
8
This entry includes time expending reviewing a Notice for Summary Judgment, presumedly for Petitioner’s
civil action. I will award attorney’s fees for most of this time but will subtract 0.5 hours of the total 3.0 hours
billed. Exhibit E at 2.
9
Presumedly, this entry refers to Ms. Widman but she did not bill for this time. See Exhibit A.
6
C. Calculations
Accounting for the reductions discussed above, I will award attorney’s fees for the
following work performed by Mr. Cuneo:
Attorneys’ Fees:
Hours Hours Rate Rate
Billing Record Entry Sought Paid Sought Paid Amount Paid
6/7/16 2.0 2.0 $375 $375 $750.00
6/16/16 0.2 0.2 $375 $375 $75.00
9/15/16 1.5 1.0 $375 $375 $375.00
9/29/16 1.0 1.0 $375 $375 $375.00
9/29/16 1.2 1.2 $375 $375 $450.00
3/3/17 2.0 1.0 $375 $375 $375.00
5/3/17 0.5 0.5 $375 $375 $187.50
10/15/17 3.0 2.5 $375 $375 $937.50
11/29/17 1.0 1.0 $375 $375 $375.00
Total for Fees $3,900.00
IV. Conclusion
Accordingly, Petitioner is awarded an additional $3,900.00 in attorney’s fees to pay
for the work performed by Mr. Cuneo.
Petitioner is awarded a lump sum of $3,900.00 in the form of a check made
payable jointly to Petitioner and Petitioner’s former counsel, David K. Cuneo of The
Law Office of Cuneo & Leonetti.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of
the Court), the Clerk shall enter judgment in accordance with this decision.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
7