Roubik v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1473V
(not to be published)
JULIE ROUBIK, personal
representative of the ESTATE OF Chief Special Master Corcoran
THOMAS ROUBIK,
Filed: November 12, 2021
Petitioner,
Special Processing Unit (SPU);
v.
Mathematical Error; Post Judgment
Relief; Attorney’s Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Nancy Routh Meyers, Turning Point Litigation, Greensboro, NC, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 27, 2020, Julie Roubik filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”), as personal representative of the estate of Thomas Roubik. Petitioner
alleged that “[a]s a direct and proximate result of the reaction to the influenza
vaccination administered to Thomas Roubik on November 8, 2019, he suffered from the
effects of Guillain-Barré Syndrome which ultimately led to his untimely death.” (Petition
at ¶ 16). On May 21, 2021, a decision was issued awarding compensation to Petitioner
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required 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). This means the Decision will be available to anyone with access
to the internet. 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, I agree that the identified material fits within this definition, I will redact such
material f rom 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).
based on the Respondent’s proffer. (ECF No. 21). On September 17, 2021, I awarded
Petitioner $11,321.43 in attorney’s fees and costs and $4,069.05 representing
reimbursement for Petitioner’s costs, in the form of a check payable to Julie Roubik,
Personal Representative of the Estate of Thomas Roubik. (ECF No. 29).
On November 10, 2021, counsel for Petitioner notified the staff attorney
managing the case of a mistaken overpayment of $720.00 in attorney’s fees and
costs and steps needed to amend the decision and judgement. See Informal Remark,
November 12, 2021. For the reasons stated below, I hereby grant Petitioner’s motion,
amending the prior judgment to account for this overpayment by refunding the
additional $720.00 in attorney’s fees and costs to Respondent.
I. Petitioner’s Motion for Post-Judgment Relief
Petitioner requested a correction of the Decision and Judgement due to an
overpayment of $720.00. See Informal Remark, November 12, 2021. The motion for
attorney’s fees and costs incorrectly listed the subtotals incurred by counsel as an
award of $10,601.43 in fees and costs incurred at Turning Point Litigation and
$720.00 in attorney fees incurred at Ward Black Law. (ECF No. 29). The correct
subtotals of attorney fees and costs should have $9,881.43 incurred by Turning Point
Litigation and $720.00 incurred by Ward Black Law. The incorrect total was included
in the Fee Decision issued on September 17, 2021 and the Judgment entered on
September 20, 2021. (ECF Nos. 29, 31).
Petitioner included Respondent on all correspondence regarding this matter.
See Informal Remark, November 12, 2021.
II. Legal Standard
Vaccine Rule 36(a) allows a party to obtain relief from judgment in two ways:
either by filing a motion for reconsideration pursuant to RCFC 59, or by seeking relief
from judgment pursuant to RCFC 60. If the case was assigned to a judge for review, the
motion will be referred to the same judge. Vaccine Rule 36(a)(1). Otherwise, the
motion will be referred to the special master assigned to the case. Vaccine Rule
36(a)(2). 3
In determining whether a judgment should be set aside or altered, “the need for
finality of judgments” must be balanced against “the importance of ensuring that
3 This sharing of authority over judgments between judge and special master was determined to be
appropriate, since Vaccine Rule 36 allows for immediate review of the special master’s ruling. Vessels
v. Sec’y of Health & Human Servs., 65 Fed. Cl. 563, 568 (2005).
litigants have a full and fair opportunity to litigate.” Kennedy v. Sec’y of Health & Hum.
Servs., 99 Fed. Cl. 535, 539 (2011) (citing United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 276 (2010); see also Bridgham by Libby v. Sec’y of Health &
Hum. Servs., 33 Fed. Cl. 101, 104 (1995) (discussing the “tension between the goals of
ensuring that the court’s judgment appropriately reflects the adjudication of the parties’
rights and of providing the parties with certainty as to those rights”).
Pursuant to RCFC 60(a), a court may correct “[c]lerical mistakes in judgments,
orders, or other parts of the record” at any time. Additionally, a party may request
relief from final judgment for the specific reasons listed in RCFC 60(b)(1)-(5) or the
“catch all” provision at RCFC 60(b)(6). Similar to RCFC 60(a), RCFC 60(b)(1) allows
post judgment relief for “mistake, inadvertence, surprise, or excusable neglect.” I have
previously discussed the differences between RCFC 60(a) and RCFC 60(b)(1) in
Williamsen v. Sec’y of Health & Human Servs., No. 10-0223V, 2014 WL 1388894(Fed. Cl. Spec. Mstr. Feb. 5, 2014).
III. Appropriate Amount of Fees Awarded
Petitioner is seeking post-judgment relief pursuant to RCFC 60(a). I agree that
RCFC 60(a) is the subsection most applicable to the circumstances in this case, and
that the error previously made in the Fee Decision and Judgment should be corrected.
Accordingly, I GRANT Petitioner’s request and direct the Clerk of Court to
issue judgment in favor of Respondent to include the following information:
A lump sum payment of $720.00 to reimburse Respondent for the mistaken
overpayment. The check should be made payable to:
U.S. Department of Health and Human
Services Memo: JULIE ROUBIK, personal
representative of THE ESTATE OF THOMAS
ROUBIK, Case No. 20-1473V
The check should be sent to:
Ms. Cheryl Lee
Division of Vaccine Injury
Compensation/HRSA 5600 Fishers Lane, Mail
Stop 08N194B Rockville, MD 20857
In the absence of a timely-filed motion for review (see Appendix B to the Rules
of the Court), the Clerk shall enter judgment in accordance with this decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
3