Kristina Dickerson, as the Mother and Natural Guardian of Christopher Holleman, a Minor v. Secretary of Health and Human Services 0 ( 2013 )

In the United States Court of Federal Claims
No. 03-2827V
Filed: December 3, 2013
Not to be Published
****************************
KRISTINA DICKERSON, *
As the Mother and Natural Guardian of *
CHRISTOPHER HOLLEMAN, a Minor, *
*
Petitioner, * Autism; Attorneys’ Fees and Costs
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On September 21, 2012, petitioner filed a motion for attorneys’ fees and costs in
this case. Respondent opposed the motion, arguing that fees and costs should not be
awarded in untimely filed cases. Because this issue was pending before the U.S.
Supreme Court, the special masters deferred ruling on fee applications in approximately
1,000 Omnibus Autism Proceedings (“OAP”) cases. Thus, a ruling on petitioner’s
motions in this case was deferred.
Following the Supreme Court’s decision,2 respondent’s counsel and petitioners’
counsel from the five law firms with the greatest number of pending motions discussed
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Because this unpublished decision contains a reasoned explanation for the action in this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), a party has 14 days to identify and move to delete medical or other information, that
satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
I agree that the identified material fits within the requirements of that provision, I will delete such
material from public access.
2
The Supreme Court held that a “petition found to be untimely may qualify for an award of
attorney's fees if it is filed in good faith and there is a reasonable basis for its claim.” Sebelius v.
Cloer, 133 S. Ct. 1886, 1896-97 (2013).
a procedure to avoid the lengthy litigation required to assess whether each case was
filed in good faith and with a reasonable basis. Respondent will withdraw her objection
to the payment of attorneys’ fees and costs in cases which were filed when the minor
child was 78 months of age or younger with two caveats.3 Petitioners’ counsel will
withdraw all motions for fees and costs in cases which were filed when the minor child
was older than 78 months of age or which fall under either caveat. The procedure
applies only to cases in the OAP and should not be construed as evidence that the
parties are abandoning any legal arguments they may make in other cases.
Petitioner’s counsel in this case has decided to follow this procedure. Because
this case was filed when the minor child was more than 78 months of age, petitioner has
agreed to request only the filing fee costs. Thus, petitioner’s counsel filed an
unopposed motion to amend the amount of attorneys’ fees and costs to $250.00 on
November 20, 2013. In light of the earlier filed civil suit and circumstances involved in
this case, respondent has agreed to withdrawn her objection to payment of the filing fee
costs in the amount of $250.00.
Petitioner seeks attorneys’ fees and costs in the amount of $250.00. In lieu of
filing a Vaccine General Order #9 statement, petitioner’s counsel represents that he will
reimburse petitioner any costs that petitioner personally incurred that are compensable
under § 15 (e)(1).
Pursuant to §15(e), I hereby award a lump sum of $250.004 to be paid in the
form of a check payable jointly to the petitioner and petitioner’s counsel, Douglas
& London, P.C.
3
The first caveat is that respondent will continue to object in any case where the filed medical
records show that there was a diagnosis outside the statute of limitations. The second caveat
applies to those cases, in which the claim lacked a reasonable basis for reasons unrelated to
timely filing. For example, if the minor vaccinee received only a hepatitis B vaccine at birth and
no additional vaccines were administered, respondent may continue to object because the
period between vaccination and onset of symptoms at 15 months of age is unreasonable.
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, HHS, 924 F.2d 1029 (Fed. Cir.1991).
2
In the absence of a timely-filed motion for review filed pursuant to Appendix B of
the Rules of the U.S. Court of Federal Claims, 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
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).
3