Simon v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 09-480V Filed: July 16, 2015 (Not to be Published)

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* ADAM C. SIMON and * NICOLE M. SIMON, parents and * natural guardians of DCS, a minor, *

* Petitioners, * Decision on Interim

* Attorneys’ Fees and Costs v. *

* SECRETARY OF HEALTH * AND HUMAN SERVICES *

* Respondent. *

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DECISION AWARDING SUPPLEMENTAL INTERIM ATTORNEYS’

FEES AND COSTS On July 24, 2009, Petitioners filed a Petition for Vaccine Compensation in the National Vaccine Injury Compensation Program (“the Program”),1 alleging that DCS was injured by a vaccine or vaccines listed on the Vaccine Injury Table. See § 14. On May 17, 2015, Petitioners filed a motion for interim attorneys’ fees and costs. Respondent filed Objections to Petitioners’ motion on May 21, 2015. On June 25, 2015, I issued a Decision awarding interim attorneys’ fees and costs in this case.

On July 16, 2015, the parties filed a joint stipulation concerning supplemental interim attorney’s fees and costs incurred in this matter. The parties’ stipulation requests a total payment of $5,000.00, representing additional attorneys’ fees and costs. Respondent does not object to an award of this amount.2

I find that a supplemental award of interim attorneys’ fees and costs is appropriate in this case. Interim attorneys’ fees and costs are explicitly authorized by the binding precedent of the United States Court of Appeals for the Federal Circuit. Avera v. HHS, 515 F.3d. 1343; Shaw v. HHS, 609 F.3d 1372, 1374 (Fed. Cir. 2010) (“the Vaccine Act permits [an] award of interim fees and costs”); Cloer v. HHS, 675 F.3d 1358, 1361-62 (Fed. Cir. 2012) (“Congress made clear that denying interim attorneys’ fees under the Vaccine Act is contrary to an underlying purpose of the Vaccine Act.”). See also Vaccine Rule 13(b).

The request for supplemental interim attorneys’ fees and costs is hereby granted. I find that the petition was brought in good faith and upon a reasonable basis, and the amount requested is reasonable and appropriate. Accordingly, I hereby award the following attorneys’ fees and costs pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1):

• a lump sum of $5,000.00, in the form of a check payable jointly to Petitioners and Petitioners’ counsel, Robert J. Krakow, on account of services performed by counsel’s law firm.

In the absence of a timely-filed motion for review filed pursuant to Appendix B of the Rules of the U.S. Court of Federal Claims, the clerk of the court shall enter judgment in accordance herewith.3 IT IS SO ORDERED.

/s/ George L. Hastings, Jr. George L. Hastings, Jr. Special Master