Harvey v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-128V
Filed: March 27, 2017
UNPUBLISHED
*********************************
JERI HARVEY, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Ronald Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Douglas Ross, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On January 27, 2016, Jeri Harvey (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq.,2 (the “Vaccine Act”). Petitioner alleged that she suffers from a shoulder injury
related to vaccine administration (“SIRVA”) resulting from the influenza vaccine she
received on October 1, 2014. Petition at 1. On November 30, 2016, the undersigned
issued a decision awarding compensation to petitioner based on the parties’ stipulation.
(ECF No. 26).
On March 16, 2017, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 31). Petitioner requests attorneys’ fees in the amount of $14,461.50, attorneys’
costs in the amount of $524.53, and petitioner’s costs in the amount of $402.74, for a
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned will redact such material from 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).
total amount of $15,388.77. Id. at 1. In compliance with General Order #9, petitioner
has filed a signed statement indicating she incurred $402.74 in out-of-pocket expenses.
See Notice, filed Mar. 16, 2017 (ECF No. 32).
On March 23, 2017, respondent filed a response to petitioner’s motion. (ECF No.
33). Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
contemplates any role for respondent in the resolution of a request by a petitioner for an
award of attorneys’ fees and costs.” Id. at 1. Respondent adds, however, that she “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Petitioner “respectfully recommends that the Chief Special Master
exercise her discretion and determine a reasonable award for attorneys’ fees and
costs.” Id. at 3. By email correspondence with the parties on March 24, 2017, the OSM
staff attorney managing this SPU case confirmed with petitioner’s counsel that petitioner
would not be filing a reply. See Informal Remark, dated Mar. 27, 2017.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned finds no cause to reduce the requested hours or rates.3
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request, the undersigned
GRANTS petitioner’s motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $15,388.774 as follows:
 A lump sum of $14,986.03, representing reimbursement for
attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and petitioner’s counsel, Conway, Homer, P.C.; and
 A lump sum of $402.74, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner.
The clerk of the court shall enter judgment in accordance herewith.5
3For example, petitioner has billed time spent by her attorney traveling at one-half the attorney’s usual
hourly rate. See Billing Record Entries #527560 and 527563, dated June 20, 2015 (ECF No. 31).
4This 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 of Health & Human Servs.,
924 F.2d 1029 (Fed. Cir.1991).
5 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.
2
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3