Simon v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 09-480V
Filed: July 16, 2015
(Not to be Published)
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ADAM C. SIMON and *
NICOLE M. SIMON, parents and *
natural guardians of DCS, a minor, *
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Petitioners, * Decision on Interim
* Attorneys’ Fees and Costs
v. *
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SECRETARY OF HEALTH *
AND HUMAN SERVICES *
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Respondent. *
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DECISION AWARDING SUPPLEMENTAL INTERIM ATTORNEYS’
FEES AND COSTS
On July 24, 2009, Petitioners filed a Petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program (“the Program”),1 alleging that DCS was injured by a
vaccine or vaccines listed on the Vaccine Injury Table. See § 14. On May 17, 2015, Petitioners
filed a motion for interim attorneys’ fees and costs. Respondent filed Objections to Petitioners’
motion on May 21, 2015. On June 25, 2015, I issued a Decision awarding interim attorneys’
fees and costs in this case.
On July 16, 2015, the parties filed a joint stipulation concerning supplemental interim
attorney’s fees and costs incurred in this matter. The parties’ stipulation requests a total payment
1
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100
Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter,
individual section references will be to 42 U.S.C. § 300aa of the Act.
1
of $5,000.00, representing additional attorneys’ fees and costs. Respondent does not object to an
award of this amount.2
I find that a supplemental award of interim attorneys’ fees and costs is appropriate in this
case. Interim attorneys’ fees and costs are explicitly authorized by the binding precedent of the
United States Court of Appeals for the Federal Circuit. Avera v. HHS, 515 F.3d. 1343; Shaw v.
HHS, 609 F.3d 1372, 1374 (Fed. Cir. 2010) (“the Vaccine Act permits [an] award of interim fees
and costs”); Cloer v. HHS, 675 F.3d 1358, 1361-62 (Fed. Cir. 2012) (“Congress made clear that
denying interim attorneys’ fees under the Vaccine Act is contrary to an underlying purpose of the
Vaccine Act.”). See also Vaccine Rule 13(b).
The request for supplemental interim attorneys’ fees and costs is hereby granted. I
find that the petition was brought in good faith and upon a reasonable basis, and the amount
requested is reasonable and appropriate. Accordingly, I hereby award the following attorneys’
fees and costs pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1):
• a lump sum of $5,000.00, in the form of a check payable jointly to Petitioners
and Petitioners’ counsel, Robert J. Krakow, on account of services performed
by counsel’s law firm.
In the absence of a timely-filed motion for review filed pursuant to Appendix B of the
Rules of the U.S. Court of Federal Claims, the clerk of the court shall enter judgment in
accordance herewith.3
IT IS SO ORDERED.
/s/ George L. Hastings, Jr.
George L. Hastings, Jr.
Special Master
2
The parties’ stipulation includes a footnote indicating that respondent maintains that the Vaccine Act does not
authorize the requested interim fees. However, that footnote also states that respondent elects not to raise that
statutory objection at this time.
3
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