McCandless v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1375V
Filed: March 9, 2018
UNPUBLISHED
THOMAS MCCANDLESS,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Michael A. Firestone, Marvin Firestone, MD, JD and Associates, San Mateo, CA, for
petitioner.
Lynn Elizabeth Ricciardella, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On October 20, 2016, Thomas McCandless (“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”) due to an influenza (“flu”) vaccine he
received on October 22, 2014. Petition at 1, 6. On December 12, 2017, the
undersigned issued a decision awarding compensation to petitioner based on the
parties’ stipulation. (ECF No. 28).
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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 January 26, 2018, petitioner filed a motion for attorneys’ fees and costs.
(ECF No. 31). Petitioner requests attorneys’ fees in the amount of $11,362.61 and
attorneys’ costs in the amount of $820.34. (Id. at 1.) Additionally, in compliance with
General Order #9, petitioner filed a signed statement indicating that petitioner incurred
$400.00 in out-of-pocket expenses. (Id. at 1). Thus, the total amount requested is
$12,582.95.
On February 5, 2018, respondent filed a response to petitioner’s motion. (ECF
No. 32). 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).
Petitioner has filed no reply.
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 $12,582.95 3 as follows:
• A lump sum of $12,182.95, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Michael A. Firestone; and
• A lump sum of $400.00, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
3This 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).
2
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
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.
3