Dominguez v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
GEORGE DOMINGUEZ, *
* No. 12-378V
Petitioner, * Special Master Christian J. Moran
*
v. *
* Filed: December 18, 2017
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorneys’ fees & costs;
* interim award; waiver.
Respondent. *
*********************
Clifford Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA for
petitioner;
Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for
respondent.
UNPUBLISHED DECISION AWARDING
ATTORNEYS’ FEES AND COSTS ON AN INTERIM BASIS1
Pending an entitlement hearing, George Dominguez filed a second motion
for interim attorneys’ fees and costs. Mr. Dominguez is awarded the full amount
of his request, $75,011.50.
* * *
Mr. Rodriguez received attorneys’ fees and costs for his original attorney,
Anne Toale, pursuant to his first motion for an award of attorneys’ fees and costs
on an interim basis. Interim Fees Decision, issued March 6, 2017, 2017 WL
1316961. On July 29, 2017, Mr. Rodriguez filed a second motions requesting an
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
award of attorneys’ fees and costs on an interim basis, requesting $40,915.80 in
fees and $34,095.70 in costs.
The Secretary filed a response representing that he “defers to the Special
Master to determine whether or not petitioner has met the legal standard for an
interim fees and costs award,” but otherwise “is satisfied the statutory requirements
for an award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp.,
filed July 31, 2017, at 2. The Secretary did not raise any specific objections and
recommended that the Special Master “exercise his discretion” when determining a
reasonable award. Id. at 3.
This matter is now ripe for adjudication.
* * *
Because it has not yet been determined whether Mr. Dominguez will receive
compensation, he must establish that the “petition was brought in good faith and
there was a reasonable basis for the claim” before he can be eligible to receive an
interim award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e)(1).
Furthermore, even if a petitioner meets the eligibility requirements for an interim
award of attorneys’ fees and costs, the special master exercises discretion whether
to make such an award. See Rehn v. Sec’y of Health & Human Servs., 126 Fed.
Cl. 86, 92 (2016).
As noted above, the Secretary believes that the statutory requirements for an
award of attorneys’ fees and costs have been met. The undersigned previously
found that good faith for bringing the claim exists and nothing has arisen to disturb
that finding. Interim Fees Decision, 2017 WL 1316961, at *3. The undersigned
also previously found that reasonable basis exists and additional submissions
(medical literature and another expert report) have since been filed to support that
finding. Interim Fees Decision, 2017 WL 1316961, at *3. Accordingly, due to the
findings of good faith and reasonable basis, Mr. Dominguez is eligible for an
interim award of attorneys’ fees and costs.
Now that Mr. Dominguez has been found eligible for an interim award, the
undersigned must determine whether to exercise his discretion to grant an award.
See Rehn, 126 Fed. Cl. at 92. Some of the factors that the Federal Circuit has
considered to determine if an interim award is appropriate are protracted litigation,
costly experts, and undue hardship. Shaw v. Sec'y of Health & Human Servs., 609
F.3d 1372, 1375 (Fed. Cir. 2010); Avera v. Sec'y of Health & Human Servs., 515
2
F.3d 1343, 1352 (Fed. Cir. 2008). Neither party has presented any arguments
about how these factors affect the appropriateness of an interim fees award.
In regard to fees and costs requested for Ms. Toale in the first interim
motion, the undersigned found an undue hardship because Ms. Toale was waiting
on fees for work performed as far back at November 2011. Interim Fees Decision,
2017 WL 1316961, at *4-5. In regard to fees and costs requested for Mr.
Shoemaker in the present interim motion, Mr. Dominguez is seeking fees for work
performed by Mr. Shoemaker as far back as April 2015. As for costly experts, Mr.
Dominguez is seeking $33,950.00 in costs for the experts. While Mr. Shoemaker
may have waiting for payment for less time than Ms. Toale waited payment, he
also incurred substantial expert costs. Thus, the undersigned finds that an interim
award is warranted in this case to alleviate an undue hardship and costly experts.
Pursuant to the rationale established in Swintosky v. Secʼy of Health &
Human Servs., No. 12-403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6,
2017),2 the Secretary has waived any objections to the amount of fees requested.
Absent any objections, Mr. Rodriguez’s request for interim attorneys’ fees and
costs is GRANTED IN FULL:
A lump sum of $75,011.50 in the form of a check made payable to
petitioner and petitioner’s attorney, Clifford Shoemaker.
These amounts represents reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
In Swintosky, the parties submitted a joint notice of decision not to seek review of the
Fees Decision.
3
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