Bailey Jr v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1417V
(Not to be published)
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MICHAEL BAILEY JR., Administrator of *
the Estate of MICHAEL BAILEY SR., * Special Master Oler
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Petitioner, * Filed: March 13, 2018
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v. * Denial of Interim Attorneys’ Fees and Costs.
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SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
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Respondent. *
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Braden Andrew Blumenstiel, Dublin, OH, for Petitioner.
Colleen Clemons Hartley, U. S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
On November 15, 2015, Michael Bailey Sr. filed a petition seeking compensation under
the National Vaccine Injury Compensation Program (the “Vaccine Program”),2 alleging that he
suffered from injuries as a result of an influenza (“flu”) vaccination administered to him on
December 12, 2012. Petition (“Pet.”), ECF No. 1. Specifically, the petition states that Mr.
Bailey was diagnosed with amyotrophic lateral sclerosis (“ALS”) and has associated symptoms
1
Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is
privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the Decision in its present form will be
available. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
of Guillain-Barré Synrdrome. Pet. at 4-5. Counsel of record in this matter was originally James
Blumenstiel. On Sepetember 22, 2017, Braden Blumenstiel was substituted as counsel of record
for James Blumenstiel. ECF No. 77.
A Motion for Interim Attorneys’ Fees and Costs (“Interim Fees Motion”) was filed on
November 28, 2017, requesting interim attorneys’ fees in the amount of $39,150.00 and interim
costs in the amount of $16,334.40. ECF No. 85. Although a General Order No. 9 statement was
not formally filed, Petitioner’s counsel affirmatively asserts that “all litigation expenses were
advanced on behalf of Petitioner by Attorney James B. Blumenstiel, and none of the expenses
were advanced by the Petitioner.” Id. at 3.
On December 7, 2017, Respondent submitted a response to the Interim Fees Motion,
objecting to an award of interim attorneys’ fees and costs. ECF No. 88. Respondent argues that
Petitioner “has not identified any special showing to justify an award of interim attorneys’ fees
and costs under the circumstances of this case.” Id. at 2. Respondent further argues that
Petitioner “has made no argument at all, much less any showing that he needs payment of
interim fees and costs to avoid some undue hardship, either to counsel or […] to [P]etitioner.”
Id. at 3. Respondent also submits that “the impending withdrawal of [P]etitioner’s counsel from
representation does not provide sufficient grounds to justify an interim award.” Id.
On March 5, 2018, I issued an order, instructing Petitioner’s counsel to reply to
Respondent’s objections. ECF No. 95. Petitioner’s counsel filed a reply authored by Petitioner’s
former counsel on March 8, 2018. ECF No. 97. Petitioner’s former counsel represents that he
has “no objection, what so ever, to delaying any Ruling on [the present] Motion until the
conclusion of this case.” Id. at 1.
Interim fees may be paid at the discretion of the special master. See Avera v. Sec’y of
Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008) (“Interim fees are particularly
appropriate where proceedings are protracted and costly experts must be retained”). However,
interim fees and costs are not routinely awarded. Woods v. Sec’y of Health & Human Servs., 105
Fed. Cl. 148, 154 (2012). Interim fees are the exception, rather than the rule. Indeed, “there is
not a presumption of entitlement to interim fees.” McKellar v. Sec’y of Health & Human Servs.,
101 Fed. Cl. 297, 300 (2011). Petitioner has not made a showing that an award of interim fees
and costs is necessary to avoid undue hardship; on the contrary, Petitioner’s former counsel
expressly consented to deferring his request for fees and costs until this case has concluded.
2
Accordingly, I DENY Petitioner’s counsel’s motion for interim attorneys’ fees and costs.
The Clerk of Court is directed to enter judgment in accordance with this Decision.3
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice renouncing the
right to seek review.
3