Calfee v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-680V
Filed: July 20, 2017
UNPUBLISHED
VIRGINIA A. CALFEE,
Special Processing Unit (SPU);
Petitioner, Attorneys’ Fees and Costs
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Elizabeth Martin Muldowney, Sands Anderson, P.C., Richmond, VA, for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On June 9, 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 she suffered a shoulder injury caused by her September
19, 2014 influenza vaccination. On March 28, 2017, the undersigned issued a decision
awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 31.)
On July 10, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 36.) Petitioner requests attorneys’ fees in the amount of $33,257.40 and attorneys’
costs in the amount of $1,560.76. (Id. at 4.) Additionally, 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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 represented that petitioner incurred $7.64 in out-of-pocket
expenses. Thus, the total amount requested is $34,825.80.
On July 12, 2017, respondent filed a response to petitioner’s motion. (ECF No.
37.) 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 July 12, 2017, petitioner filed a reply. (ECF No. 38.) In her reply, petitioner
reiterated that her request for fees and costs is reasonable.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no 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 $34,825.80 3 as follows:
• A lump sum of $34,818.16, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Elizabeth Martin Muldowney,
Esq.; and
• A lump sum of $7.64, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
The clerk of the court shall enter judgment in accordance herewith. 4
IT IS SO ORDERED.
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
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3