United States Court of Federal Claims, 2017

Barry v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided February 6, 2017 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: January 12, 2017 UNPUBLISHED

************************* SHANNON M. BARRY, *

* Chief Special Master Dorsey Petitioner, *

v. * Case No. 12-039V

SECRETARY OF HEALTH * Repayment of Excess Award of AND HUMAN SERVICES, * Compensation; Direction of

* Additional Judgment. Respondent. *

************************* Aaron Siri, Siri and Glimstad LLP, New York, New York, for petitioner.

Alexis Babcock, United States Department of Justice, Washington, D.C., for respondent.

DECISION ORDERING REPAYMENT OF EXCESS ATTORNEYS’ FEES AND

DIRECTING ADDITIONAL JUDGMENT1 On January 19, 2012, Shannon Barry (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-1 to 34 (2012). Petitioner alleged that, as a result of receiving an influenza (“flu”) vaccination on January 21, 2009, she suffered from Postural Orthostatic Tachycardia Syndrome (“POTS”). Petition at Preamble. On June 24, 2016, the undersigned issued a decision based on the parties’ stipulation and awarded petitioner $40,000.00 in compensation. Decision at 2.

On October 25, 2016, the undersigned issued a decision based on petitioner’s motion for attorneys’ fees and costs. Petitioner’s attorneys were awarded compensation for attorneys’ fees and costs in the following amounts: $78,301.11 to T. Russell Price, Esq.; $67,456.96 to Siri and Glimstad, LLP; and $11,122.86 to Law Offices of Robert J. Krakow, P.C. Decision dated October 25, 2016 (ECF No. 94) at 15. Judgment entered on October 27, 2016.

On December 9, 2016, Mr. Krakow contacted the undersigned’s law clerk via email to report that an error in the decision resulted in an overpayment to Mr. Krakow in the amount of $742.80. The undersigned issued an Order directing the parties to file a joint motion to amend the judgment, which they did on January 6, 2017. See Joint Motion to Amend/Correct (“Joint Mot.”) dated January 6, 2017 (ECF No. 99).

The parties agree that the amount of $11,122.86 awarded to Mr. Krakow for attorneys’ fees and costs is incorrect and that the amount should be $10,379.97.2 Joint Mot. at 1 (referencing Decision at 14). The parties request that the judgment be corrected pursuant to Rules 60(a) and (b) 3 of the United States Court of Federal Claims (“RCFC”) and that the Clerk issue judgment directing petitioner’s counsel to send a check in the amount of $742.89 to the Department of Health and Human Services. Id.

The undersigned finds the parties’ request to be reasonable and GRANTS the joint motion. Accordingly, the undersigned directs petitioner’s counsel to remit a payment of $742.89 to respondent. The Clerk of Court shall enter an additional judgment in favor of respondent in the amount of $742.89, representing Mr. Krakow’s reimbursement to respondent for the overpayment of attorneys’ fees and costs.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court is directed to enter judgment in accordance with this decision.4

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

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)(Federal Management and Promotion of Electronic Government Services). As provided by Vaccine Rule 18(b), each party has 14 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). 2 The decision stated that the correct amount of Mr. Krakow’s attorneys’ fees and costs should be $10,379.97. However, the decision incorrectly ordered the Clerk of Court to pay Mr. Krakow $11,122.86. See Decision at 14-15. 3 RCFC 60(a) concerns corrections based on clerical mistakes, oversights, and omissions. The rule states, in relevant part, “[t]he Court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” RCFC 60(b) concerns the grounds for relief from a final judgment, order, or proceeding. The rule states, in relevant part, that “the Court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake…” 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the right to seek review.

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