Glick v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-01377V
Filed: August 9, 2017
UNPUBLISHED
ELIZABETH GLICK,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Robert Howie, Jr., Howie Law, PC, Dallas, TX, for petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On October 21, 2016, Elizabeth Glick (“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” or “Program”). Petitioner alleged that she
suffered a shoulder injury related to vaccine administration (“SIRVA”) caused-in-fact by
the influenza vaccination she received on October 22, 2013. Petition at 1, ¶¶ 1, 3, 18,
12. On July 18, 2017, the undersigned issued a decision awarding compensation to
petitioner based on respondent’s proffer to which petitioner agreed. (ECF No. 26).
On August 7, 2017, petitioner filed a motion for attorneys’ fees and costs.
Petitioner’s Motion for Attorneys’ Fees and Costs (“Pet. Motion.”) (ECF No. 29).
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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).
Petitioner requests attorneys’ fees in the amount of $26,753.90 and attorneys’ costs in
the amount of $1,404.84 for a total amount of $28,158.74. Id. at 1. In compliance with
General Order #9, petitioner’s counsel has filed a signed statement from petitioner
stating he incurred no out-of-pocket expenses. See General Order #9 Statement, filed
as 5th Attachment to Pet. Motion (ECF No. 29-5).
On August 8, 2017, respondent filed a response to petitioner’s motion. (ECF No.
30). 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 he “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Respondent “respectfully recommends that the Chief Special
Master exercise her discretion and determine a reasonable award for attorneys’ fees
and costs.” Id. at 3.
On August 9, 2017, by email (copying respondent’s counsel on the
correspondence), the OSM staff attorney managing this SPU case confirmed with
petitioner’s counsel that petitioner did not wish to file a reply in this case. See Informal
Remark, dated Aug. 9, 2017.
The undersigned has reviewed the billing records submitted with petitioner’s
request. Petitioner’s counsel has requested an increase in rates previously requested
for work performed in 2015-163 and rates for work performed in 2017. See Pet. Motion
at 1 (Table of requested rates). The undersigned recently awarded the rates requested
in this case in several SPU cases, Murray 16-575V and English 16-825V.4 As stated in
Murray, the requested rates are within the range corresponding to the experience of the
attorneys involved.5 Furthermore, the undersigned finds the requested rates to be
appropriate given the attorneys’ experience and high quality of work. See McCulloch v.
Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *17 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015) (discussing the factors which should be considered when
determining an attorney’s appropriate hourly rate). In the undersigned’s experience, the
request appears reasonable, and the undersigned finds no cause to reduce the
requested hours or rates.
3 For example, petitioner’s counsel has requested an increase in his rate for work performed in 2015-16
from $300 per hour to $350 per hour.
4 After allowing time for the parties to file any motion for redaction, these decisions will be posted to the
court’s website, www.uscfc.uscourts.gov.
5
See http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf
(last visited on July 19, 2017) (for the OSM’s 2015-16 Fee Schedule);
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule-2017.pdf (last
visited on July 19, 2017) (OSM’s 2017 Fee Schedule).
2
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 $28,158.746 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
John Robert Howie, Jr.
The clerk of the court shall enter judgment in accordance herewith.7
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
6This 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).
7 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