UNPUBLISHED

DECISION ON ATTORNEYS' FEES AND COSTS1

NORA BETH DORSEY, Chief Special Master.

On March 17, 2015, Brian Badger ("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"). Petitioner alleged that he suffered Guillain-Barré Syndrome ("GBS") as a result of receiving the influenza ("flu") vaccine on October 4, 2013. Pet. at 1-4; Stip., filed Nov. 10, 2016, at ¶¶ 1, 2, 4. On November 15, 2016, the undersigned issued a decision awarding compensation to petitioner based on the parties' stipulation. (ECF No. 43).

On March 29, 2017, petitioner filed a motion for attorneys' fees and costs. Petitioner's Motion for Attorneys' Fees and Costs ("Pet. Motion") (ECF No. 48). Petitioner requests attorneys' fees in the amount of $26,496.80 and attorneys' costs in the amount of $1,991.26 for a total amount of $28,488.06. Id. at ¶¶ 4, 5, 9. In compliance with General Order #9, petitioner has filed a signed statement indicating he incurred no out-of-pocket expenses.3 See Exhibit 15, filed as 1st Attachment to Pet. Motion (ECF No. 48). On March 31, 2017, respondent filed a response to petitioner's motion. (ECF No. 49).

In her response, 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 she "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." Id. at 2. Petitioner "respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys' fees and costs." Id. at 3. Petitioner did not file a reply.

The undersigned has reviewed the billing records submitted with petitioner's request. In the undersigned's experience, the request appears reasonable, but the undersigned finds cause to reduce the requested hourly rates for petitioner's counsel in several instances.

Petitioner requests an hourly rate for petitioner's counsel for work performed in 2014-15 which is greater than the rate awarded by the undersigned in other SPU cases. In a reasoned decision, McGrath v. Sec'y of Health & Human Servs., No. 15-275V, 2016 WL 8257731 (Fed. Cl. Spec. Mstr. Oct. 27, 2016), the undersigned determined an appropriate hourly rate for petitioner's counsel is $325 for work performed in 2014-15 and $349 for work performed in 2016. The undersigned sees no reason to deviate from that determination in this case and adopts the reasoning set forth in McGrath. 2016 WL 8257731, at *3-5. Thus, the amount requested for attorney's fees is reduced by $644.00, reflecting a reduction in hourly rate from $333 to $325 for .3 hours of work performed in 2014 and from $341 to $325 for 40.10 hours of work performed in 2015.

Additionally, petitioner requests the full hourly rate for time petitioner's counsel spent traveling. See Exhibit 16 at 7 (1st entry dated 9/10/2015, 1st & 2nd entries dated 9/11/2015, 2nd entry dated 9/14/2015, 2nd entry dated 9/15/2015, and entry dated 9/17/2015). Petitioner has, however, properly spilt this time between different cases for which the travel time was expended and has separated time spent traveling from time spent by petitioner's counsel performing substantive work. See id.

In the Vaccine Program, special masters traditionally have compensated time spent traveling when no other work was being performed at one-half an attorney's hourly rate. See Hocraffer v. Sec'y of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec'y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should not use this rule as standard practice but rather "[e]ach case should be assessed on its own merits." Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). "Even an automatic 50% award may be too high for an undocumented claim, given the possibility that an attorney may use the travel time to work on another matter or not to work at all while traveling." Id. In this case, all travel time which occurred in 2015 will be compensated at 50% of the usual hourly rate for petitioner's counsel, $325. Thus, the amount awarded for attorneys' fees is further reduced by $1,527.50, reflecting a reduction in hourly rate from $325 to $162.50 for this travel time.

The Vaccine Act permits an award of reasonable attorneys' fees and costs. § 15(e). Accordingly, the undersigned awards $24,325.30 in attorneys' fees and $1,991.26 in attorneys' costs for a total award of $26,316.564 as a lump sum in the form of a check jointly payable to petitioner and petitioner's counsel, Isaiah Kalinowski. Per petitioner's request, the check shall be forwarded to Maglio, Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, FL 34236.

The clerk of the court shall enter judgment in accordance herewith.5

IT IS SO ORDERED.