Walser v. Secretary of Health and Human Services ( 2017 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1347V
Filed: April 4, 2017
UNPUBLISHED
*********************************
IRVIN WALSER, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Nancy Routh Meyers, Ward Black Law, Greensboro, NC, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On October 14, 2016, Irvin Walser (“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 he suffered an injury to his right
shoulder, including Parsonage-Turner syndrome and brachial neuritis, as a result of an
influenza (“flu”) and tetanus, diphtheria, acellular pertussis (“Tdap”) vaccines
administered to him on February 4, 2016. On March 28, 2017, the undersigned issued
a decision awarding compensation to petitioner based on the parties’ stipulation. (ECF
No. 18).
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Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
2
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 April 3, 2017, petitioner filed an unopposed motion for attorneys’ fees and
costs. (ECF No. 22).3 Petitioner requests attorneys’ fees in the amount of $10,128.00,
and attorneys’ costs in the amount of $470.46, for a total amount of $10,598.46. Id. at
1. In compliance with General Order #9, petitioner has filed a signed statement
indicating petitioner incurred no out-of-pocket expenses.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request and the lack of opposition
from respondent, the undersigned GRANTS petitioner’s motion for attorneys’ fees and
costs.
Accordingly, the undersigned awards the total of $10,598.46,4 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Ward Black Law, P.A.
The clerk of the court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3
In the motion, petitioner states that respondent 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 an admission, concession, or
waiver as to the hourly rates requested, the number of hours billed, or the other litigation related costs.
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, § 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).
5
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.
2