Calfee v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-680V Filed: July 20, 2017 UNPUBLISHED

VIRGINIA A. CALFEE, Special Processing Unit (SPU); Petitioner, Attorneys’ Fees and Costs v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

Elizabeth Martin Muldowney, Sands Anderson, P.C., Richmond, VA, for petitioner.

Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On June 9, 2016, 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 suffered a shoulder injury caused by her September 19, 2014 influenza vaccination. On March 28, 2017, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 31.)

On July 10, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 36.) Petitioner requests attorneys’ fees in the amount of $33,257.40 and attorneys’ costs in the amount of $1,560.76. (Id. at 4.) Additionally, in accordance with General

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

Order #9, petitioner's counsel represented that petitioner incurred $7.64 in out-of-pocket expenses. Thus, the total amount requested is $34,825.80.

On July 12, 2017, respondent filed a response to petitioner’s motion. (ECF No. 37.) Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special Master exercise her discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

On July 12, 2017, petitioner filed a reply. (ECF No. 38.) In her reply, petitioner reiterated that her request for fees and costs is reasonable.

The undersigned has reviewed the billing records submitted with petitioner’s request. In the undersigned’s experience, the request appears reasonable, and the undersigned finds no cause to reduce the requested hours or rates.

The Vaccine Act permits an award of reasonable attorneys’ fees and costs.

§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned GRANTS petitioner’s motion for attorneys’ fees and costs.

Accordingly, the undersigned awards the total of $34,825.80 3 as follows: • A lump sum of $34,818.16, representing reimbursement for attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Elizabeth Martin Muldowney, Esq.; and • A lump sum of $7.64, representing reimbursement for petitioner’s costs, in the form of a check payable to petitioner.

The clerk of the court shall enter judgment in accordance herewith. 4 IT IS SO ORDERED.

Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).