Johnson v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: October 29, 2015)
* * * * * * * * * * * * * * * UNPUBLISHED
ELIZABETH JOHNSON, *
* No. 13-389V
Petitioner, *
*
v. * Special Master Roth
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Attorney Fees and Costs
*
Respondent. *
*
* * * * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Claudia B. Gangi, United States Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Roth, Special Master:
In this case under the National Vaccine Injury Compensation Program,2 Chief Special
Master Dorsey issued a decision on March 17, 2015 that awarded compensation pursuant to
respondent’s proffer. On August 10, 2015, petitioner filed a motion for attorneys’ fees and costs.
On October 13, 2015, the Chief Special Master issued an Order adopting the hourly rates for
attorneys associated with the Conway, Homer, & Chin-Caplan firm established by another
special master in McCulloch v. Sec’y of Health and Human Servs., No. 09-293V, 2015 WL
5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). She ordered petitioner to file a supplemental
application for attorneys’ fees and costs using the rates established in McCulloch.
On October 14, 2015, petitioner filed her supplemental motion for attorneys’ fees and
costs. In accordance with the rates awarded in McCulloch, petitioner requested a total of
$41,806.39, an amount that included attorneys’ fees ($31,805.00), attorneys’ costs ($9,651.39),
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Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this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 (2012)). In
accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete 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 delete such material from public access.
2
The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq. (2012).
1
and petitioner’s costs ($350.00). Respondent indicated via e-mail on October 27, 2015, that she
did not intend to file a response to petitioner’s supplemental motion for attorneys’ fees and costs,
but that “[r]espondent maintains her position articulated in her August 24, 2015 response to the
original fee application.”
I find that this petition was brought in good faith and that there existed a reasonable basis
for the claim. Therefore, an award for fees and costs is appropriate, pursuant to 42 U.S.C. §§
300aa-15(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate.
Accordingly, I hereby award the total $41,806.393 in the form of a check made payable
jointly to petitioner and petitioner’s counsel of record, Ronald Homer, for petitioner’s
attorney fees and costs.
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, 42 U.S.C. §
300aa-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).
4
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).
2