Dampha v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0735V Filed: September 28, 2018 UNPUBLISHED

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

John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.

Gabrielle Manganiello Fielding, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1 Dorsey, Chief Special Master: On June 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 he suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of receiving influenza (“flu”) and Tetanus- Diphtheria-acellular Pertussis (“Tdap”) vaccinations on October 22, 2014. Petition at 1.

On September 5, 2018, the undersigned issued a decision awarding compensation to petitioner based on the parties’ stipulation. (ECF No. 39).

This means the decision will be available to anyone with access to the Internet. 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. Because this unpublished decision contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website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).

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).

On September 17, 2018, petitioner filed a motion for attorneys’ fees and costs. (ECF No. 43). Petitioner requests attorneys’ fees in the amount of $25,165.50 and attorneys’ costs in the amount of $850.49. Id. at 1. In compliance with General Order #9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket expenses. Id. at 6. Thus, the total amount requested is $26,015.99.

On September 21, 2018, respondent filed a response to petitioner’s motion. (ECF No. 44). Respondent states that he “does not object to the overall amount sought, as it is not an unreasonable amount to have been incurred for proceedings in this case to date. Respondent’s lack of objection to the amount sought in this case should not be construed as admission, concession, or waiver as the hourly rates requested, the number of hours billed, or the other litigation related costs.” Id. at 1.

On September 21, 2018, petitioner filed a reply. (ECF No. 45). Petitioner states that he “does not intend to file a substantive reply.” Id. at 1.

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 $26,015.99 3 as a lump sum in the form of a check jointly payable to petitioner and petitioner’s counsel John Robert Howie.

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

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).