United States Court of Federal Claims, 2018

Peacock v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided October 17, 2018 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0592V Filed: July 19, 2018 UNPUBLISHED

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

Amber Diane Wilson, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.

Ann Donohue Martin, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On May 2, 2017, 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 alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) after receiving an influenza (“flu”) vaccination on October 1, 2015. Petition at 1. On June 1, 2018, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 29.)

On July 2, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 33). Petitioner requests attorneys’ fees in the amount of $12,909.20 and attorneys’ costs in the amount of $589.55. Id. at 1. In compliance with General Order #9,

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

National 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). petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at 2. Thus, the total amount requested is $13,498.75.

On July 16, 2018, respondent filed a response to petitioner’s motion. (ECF No. 34.) Respondent states that he “does not object to the overall amount sought” Id. at 1.

Respondent adds, however, that his lack of objection “should not be construed as an admission, concession, or waiver as the hourly rates requested, the number of hours billed, or the other litigation related costs.” Id. On July 17, 2018, petitioner filed a reply. (ECF No. 35). Petitioner requests that the undersigned award the amount of attorneys’ fees and costs sought.

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 $13,498.75 3 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel Amber Diane Wilson. Petitioner requests check be forwarded to Maglio Christopher & Toale, PA, 1605 Main Street, Suite 710, Sarasota, Florida, 34236.

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

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.

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).

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.

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