Newport v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1897V
(Not to be published)
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VALERIE NEWPORT, *
* Special Master Corcoran
*
* Filed: July 29, 2019
Petitioner, *
v. *
* Attorney’s Fees and Costs;
SECRETARY OF HEALTH * Post-Judgment Fees Request;
AND HUMAN SERVICES, * Blanket Reductions; Excessive
* Attorney Time
Respondent. *
*
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Andrew D. Downing, Van Cott & Talamante, Phoenix, AZ, for Petitioner.
Amy P. Kokot, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING ADDITIONAL ATTORNEY’S FEES AND COSTS1
On December 7, 2017, Valerie Newport filed a Petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that she
developed a constant tremor in her right arm after receiving the influenza (“flu”) vaccine on
September 19, 2016. Pet. at 1 (ECF No. 1). Unable to secure expert support for her claim, Ms.
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’s website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012)). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its current form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act.
Newport filed a Motion seeking dismissal of the Petition on January 10, 2019, and I subsequently
dismissed the action. Decision, dated Jan. 11, 2019 (ECF No. 21).
A week later, on January 17, 2019, Petitioner filed a motion seeking a final award of
attorney’s fees and costs. ECF No. 22 (“Mot.”). Although Respondent opposed the fees request on
the grounds that the case lacked reasonable basis, I awarded fees through the date that Petitioner
requested dismissal. Decision, dated Mar. 12, 2019 (ECF No. 30) (“Fees Decision”). Respondent
subsequently filed a Motion for Reconsideration of the Fees Decision on March 22, 2019 (ECF
No. 31), which in turn prompted Petitioner to file a short brief in opposition. See Pet’r’s Resp.,
filed Apr. 1, 2019 (ECF No. 32). After I denied reconsideration without further appeal by either
side, judgment entered on the fees award on April 12, 2019. ECF No. 34.
Now, three months after the entry of judgment, Petitioner has filed a motion for additional
fees and costs, in the total amount of $3,767.00 ($3,575.50 in fees, plus $191.50 in research costs)
reflecting the work performed to respond to Motion for Reconsideration. Motion, filed July 11,
2019 (ECF No. 37). A billing invoice appended to the Motion reveals that the same two attorneys
who performed work on the case before its dismissal were involved in the preparation of the
reconsideration response—and billed nearly eleven hours of time in that effort. See Ex. C at 4 (ECF
No. 37-1). Respondent’s filed reaction to the supplemental fees request leaves its resolution to my
discretion. ECF No. 38.
Putting aside the plainly dilatory nature of the supplemental request,3 I find that Petitioner
is entitled to fees incurred in responding to a motion that, if granted, would potentially have
resulted in the denial of fees entirely—and where the motion was instead denied. However,
although the rates requested for the attorneys involved are consistent with what I ordered in my
earlier Fees Decision, the quantum of fees requested—eleven hours of attorney time for
preparation of a four-page opposition—is excessive. Special masters are empowered to make
percentage reductions in fees requested. See, e.g., De Souza v. Sec’y of Health & Human Servs.,
141 Fed. Cl 338, 346 (2018) (finding that special master “acted within his considerable discretion”
when making an across-the-board reduction of 35% to the requested attorney’s fees). It seems
especially reasonable to take this approach to a post-judgment fees request that seeks less than
$4,000 total. I will therefore award only 50% of the total sum requested, or $1,884.00. The work
performed on this matter might better have been done mainly by Mr. Downing’s associate, Ms.
Van Cott, and certainly a four-page motion did not require so much time.
Accordingly, I hereby award supplemental attorney’s fees and costs in the total sum of
$1,884.00, in a check payable to Petitioner and Andrew D. Downing, Esq. In the absence of a
3
Petitioner’s response to Respondent’s reconsideration request certainly could have been interposed sooner, and thus
closer in time to the issuance of the judgment. Indeed, the present request to some extent could be construed as an
effort to amend the existing judgment, although Petitioner has made no effort to establish why doing so would be
reasonable. As set forth in Rule 60(b)(1) of the Rules of the Court of Federal Claims, a judgment may be reopened
only for “mistake, inadvertence, surprise, or excusable neglect.” Counsel is admonished in the future to act more
promptly in making a supplemental fees request once a judgment has issued.
2
motion for review filed pursuant to RCFC Appendix B, the clerk of the court SHALL ENTER
JUDGMENT in accordance with the terms of this decision.4
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
4
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
3