Kleinberg v. Secretary of Health and Human Services ( 2016 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-287V
Filed: November 21, 2016
UNPUBLISHED
******************************
NINA KLEINBERG, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Unopposed by Respondent;
AND HUMAN SERVICES, * Hourly Rate.
*
Respondent. *
*
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Howard Gold, Gold Law Firm, LLC, Wellesley Hills, MA, for petitioner.
Lara Englund, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Roth, Special Master:
On March 1, 2016, Nina Kleinberg (“Ms. Kleinberg” or “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 she suffered transverse myelitis after
receiving an influenza vaccination on or about October 16, 2014. See generally Petition (“Pet.”),
ECF No. 1. Respondent denies that the influenza vaccine caused petitioner’s alleged injury. See
Stipulation at ¶ 6. Nevertheless, the parties agreed to settle this case. Respondent filed a
stipulation of settlement on November 10, 2016. Stipulation, ECF No. 17. Accordingly, on
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Because this unpublished decision contains a reasoned explanation for the action in this case,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).
November 10, 2016, the undersigned issued a decision approving the settlement. Decision, ECF
No. 18.
Petitioner now seeks an award of attorney’s fees in the amount of $15, 414.25 and costs
in the amount of $720.31, for a total of $16,134.56, pursuant to Section 15(e) of the Vaccine Act.
Motion for Attorney’s Fees (“Motion for Fees”), ECF No. 22, at 1. In accordance with General
Order #9, petitioner’s counsel has represented that petitioner did not incur any out of pocket
expenses. Id. Respondent has confirmed that she does not oppose petitioner’s application for fees
and costs. After careful consideration, the undersigned has determined to grant the request in part
for the reasons set forth below.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The
undersigned has previously awarded Mr. Gold hourly rates of $370 for work performed in 2016
and $360 for work performed in 2015. See Karl v. Sec’y of HHS, No. 14-36V, 2016 WL 6069200(Fed. Cl. Spec. Mstr. Sept. 20, 2016). In the instant application, however, Mr. Gold has requested
an hourly rate of $370 for work performed in both 2016 and 2015. The undersigned declines to
award Mr. Gold an hourly rate of $370 for work performed in 2015, as she has already
determined that his appropriate rate for 2015 is $360. Mr. Gold’s fees are hereby reduced by
$73. Mr. Gold’s costs seem reasonable and will be granted in full.
Accordingly, the undersigned awards the total of $16,061.563 as a lump sum in the
form of a check jointly payable to petitioner and petitioner’s counsel, Howard Gold.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
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.
2