Haley v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 14-1041V Filed: October 16, 2015 UNPUBLISHED

********************************* CHRISTINE HALEY, *

*

Petitioner, *

v. *

* Attorneys’ Fees and Costs; SECRETARY OF HEALTH * Special Processing Unit (“SPU”) AND HUMAN SERVICES, *

*

Respondent. *

* **************************** Ronald Craig Homer, Conway, Homer & Chin-Caplan, P.C., Boston, M.A., for petitioner. Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

Dorsey, Chief Special Master:

On October 27, 2014, 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 received an influenza (“flu”) vaccine on January 16, 2013, and thereafter suffered adhesive capsulitis, which was caused in fact by the flu vaccine. Petition at 1, 9. On April 24, 2015, a decision was issued awarding compensation to petitioner based on respondent’s proffer.

On September 18, 2015, petitioner moved for attorneys’ fees and costs. (ECF No. 28). Petitioner applied for attorneys’ fees amounting to $13,628.00, attorneys’ costs in the amount of $243.24, and petitioner’s costs amounting to $400.00. Id. at 1. On October 5, 2015, respondent filed a response to petitioner’s application for fees and costs. (ECF No. 29).

Although respondent states that she stands by the arguments she put for in M.S.S. v. HHS, No. 01-707V, current pending before the undersigned, she declined in light of the decision in McCulloch v. HHS, No. 09-293v, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), to further litigate that issue and instead “respectfully defers to the special master’s statutory discretion in determining a reasonable fee award for this case.” Id. at 2. Respondent further indicated that “nothing contained in this response should be construed as an admission, concession, or waiver by respondent as to any of the matters raised by the instant Fee Application, including but not limited to, the hourly rates requested, the number of hours requested, and other litigation related costs” (Id. at 2, fn. 1), but she did not actually raise any objection in her response to the number of hours billed by petitioner’s counsel or to any of the costs attributed to either petitioner or her counsel.

On October 7, 2015, the undersigned indicated agreement with the analysis in the McCulloch decision and ordered petitioner to file a supplemental application for attorneys’ fees and costs utilizing the rates awarded in McCulloch. (ECF No. 30). Petitioner submitted her supplemental application on October 9, 2015. (ECF No. 31).

In her supplemental application for fees and costs, petitioner requests attorneys’ fees amounting to $13,911.00, attorneys’ costs amounting to $243.24, and petitioner’s costs amounting to $400.00, for a total of $14,554.24. Id. at 1.

In a separate filing and in accordance with General Order #9, petitioner’s counsel represents that petitioner incurred costs of $400.00 and petitioner’s counsel incurred costs of $243.24. (ECF No. 27).

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300 aa-15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s supplemental request for payment of attorneys’ fees and costs.3

Accordingly, the undersigned awards:

 A lump sum of $14,154.244, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner, Christine Haley, and petitioner’s counsel, Conway, Homer & Chin-Caplan, P.C.; and

 A lump sum of $400.00, representing reimbursement for petitioner’s costs, in the form of a check payable to petitioner, Christine Haley. The clerk of the court shall enter judgment in accordance herewith.5

IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master