Vergara v. Secretary of Health and Human Services ( 2015 )

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 08-882V
Filed: February 18, 2015
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LUIS VERGARA and JACKELINE *
MORA ANGARITA, parents and natural *
guardians of J.A.V., a minor, *
*
Petitioners, * Attorney Fees and Costs; Stipulation
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
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Donald M. Gerstein, Esq., Richard Gage, P.C., Cheyenne, WY, for petitioners;
Justine E. Walters, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Vowell, Chief Special Master:
In this case under the National Vaccine Injury Compensation Program,2 I issued
a decision on September 10, 2014 denying entitlement to compensation. On January 9,
2015, petitioners filed an Application for Award of Attorney’s Fees and Reimbursement
of Costs.3 During informal discussions, respondent raised objections to certain items in
the Application. On February 17, 2015, the parties filed a stipulation for attorney fees
and costs. The stipulation indicates that respondent does not object to the amount
petitioner is requesting. Additionally, pursuant to General Order #9, the stipulation
notes that petitioners incurred $1,500.00 in personal litigation costs.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and
move to delete medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will
delete such material from public access.
2
The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq.
(2006).
3
Petitioners were previously awarded $44,190.90 for interim attorneys’ fees and costs in this case on July
17, 2014.
I find that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate,
pursuant to 42 U.S.C. §§ 300aa-15(b) and (e)(1). Further, the proposed amount seems
reasonable and appropriate. Accordingly, I hereby award the total $10,893.994 as
follows:
 A lump sum of $9,393.99 in the form of a check payable jointly to
petitioners and petitioners’ counsel of record, Donald Gerstein, for
petitioners’ attorney fees and costs; and
 A lump sum of $1,500.00 in the form of a check payable to petitioners,
Luis Vergara and Jackeline Mora Angarita, for their personal litigation
costs.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/ Denise K. Vowell
Denise K. Vowell
Chief Special Master
4
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, 42 U.S.C. § 300aa-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, HHS, 924
F.2d 1029 (Fed. Cir.1991).
5
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
2