Small v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 15-478V

Filed: November 14, 2016

Not for Publication *************************************

ADINA SMALL, * *

Petitioner, * * v. * Interim attorneys’ fees and costs * decision; counsel no longer withdrawing SECRETARY OF HEALTH *

AND HUMAN SERVICES, * *

Respondent. * * *************************************

Ronald C. Homer, Boston, MA, for petitioner.

Ann D. Martin, Washington, DC, for respondent.

MILLMAN, Special Master

DECISION DENYING INTERIM ATTORNEYS’ FEES AND COSTS1 On February 2, 2016, petitioner filed a motion for interim attorneys’ fees and costs, requesting interim attorneys’ fees of $15,976 and interim attorneys’ costs of $712.34, for a total request of 16,688.34. On February 18, 2016, respondent filed a response to petitioner’s request for interim attorneys’ fees and costs. Respondent objects to an award of interim attorneys’ fees and costs, arguing that petitioner did not establish she had a reasonable basis to bring her claim.

At the time petitioner filed her motion for interim attorneys’ fees and costs, her attorney intended to withdraw from the case. See Informal Remark dated February 12, 2016 (“Petitioner phoned the staff attorney managing this case wishing to discuss her claim in light of the fact that her attorney intends to withdraw from the case.”). In the nine months since this communication, petitioner’s counsel has not withdrawn from the case. In fact, petitioner’s counsel has been actively attempting to find expert support for petitioner’s case, and recently filed an expert report from petitioner’s treating neurologist, Dr. Szumski. See Ex. 19.

Interim awards of attorneys’ fees and costs may be appropriate “where proceedings are protracted and costly experts must be retained,” or “where the claimant establishes that the cost of litigation has imposed an undue hardship.” Shaw v. Sec’y of HHS, 609 F.3d 1372, 1375 (Fed. Cir. 2010); Avera v. Sec’y of HHS, 515 F.3d 1343, 1352 (Fed. Cir. 2008). The U.S. Court of Federal Claims and several special masters have found an interim fee award appropriate when petitioner’s counsel withdraws from the case. See, e.g., Woods v. Sec’y of HHS, 105 Fed. Cl. 148, 154 (Fed. Cl. 2012) (Judge Williams affirmed the special master’s award of interim fees and suggested that when counsel withdraws, and it is unknowable how long case resolution might take, an interim award may be appropriate). In the instant case, petitioner has not established that proceedings have been protracted, and petitioner had not yet retained an expert when she filed her request for interim attorneys’ fees and costs. Moreover, petitioner’s counsel is no longer withdrawing from the case. Therefore, the undersigned DENIES petitioner’s motion for interim attorneys’ fees and costs because it is prematurely filed.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2

IT IS SO ORDERED.

Dated: November 14, 2016 s/ Laura D. Millman Laura D. Millman Special Master