Shaffer v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1092V
Filed: June 14, 2018
* * * * * * * * * * * * * * *
DARLA SHAFFER, *
* UNPUBLISHED
Petitioner, *
v. * Special Master Oler
*
SECRETARY OF HEALTH * Decision on Attorneys’ Fees and Costs.
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Kenneth R. Behrend, Behrend and Ernsberger, P.C., for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On September 1, 2016, Darla Shaffer (“Petitioner”), filed a petition for compensation in
the National Vaccine Injury Compensation Program (“the Program”),2 alleging that she suffered
from Type I Chronic Regional Pain Syndrome (“CRPS”) as a result of receiving a trivalent
influenza (“flu”) vaccine on September 17, 2014. Petition (“Pet.”) at 1, ECF No. 1. On January
16, 2017, Respondent filed a Rule 4(c) Report stating that compensation is appropriate in this
case. ECF No. 9 at 6. On July 20, 2017, Respondent filed a proffer recommending that
compensation be provided to Petitioner in the amount of $227,018.33. See ECF No. 26 at 2.
The special master previously assigned to this case issued a Decision on July 21, 2017, adopting
Respondent’s proffer and awarding compensation. See Decision, ECF No. 27.
1
Because this 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), a party has
14 days to identify and move to delete medical or other information, that satisfies the criteria in
42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule, a motion for redaction must
include a proposed redacted decision. If, upon review, I agree that the identified material fits
within the requirements of that provision, I will delete such material from public access.
2
National Childhood Vaccine Injury Act of 1986 (“Vaccine Act” or “Vaccine Program”), 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).
1
I. Relevant Procedural History Regarding Attorneys’ Fees and Costs
This case was transferred to my docket on December 7, 2017. See ECF Nos. 33-34. On
December 14, 2017, Petitioner filed a motion for attorneys’ fees and costs (AFC Motion),
requesting $37,942.00 in attorneys’ fees, and $634.55 in attorneys’ costs, 3 for a total of
$38,576.55. Petitioner’s (“Petr’s”) Application (“App.”) dated December 14, 2017, ECF No. 35
at 8. In accordance with General Order #9, Petitioner filed a signed statement indicating that she
incurred out-of-pocket litigation expenses in the amount of $10.00. See Ex. 8, General Order #9
Statement, ECF No. 35-8. Petitioner also seeks reimbursement of those out-of-pocket expenses.
See AFC Motion at 8.
On December 15, 2017, Respondent filed a response to Petitioner’s AFC motion.
Respondent’s Response, dated December 15, 2017, ECF No. 36. 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. Additionally, he “respectfully
recommends that [I] exercise [my] discretion and determine a reasonable award for attorneys’
fees and costs.” Id. at 3.
Petitioner did not file a reply. This matter is now ripe for a decision.
II. Applicable Law and Discussion
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys’ fees
and costs is automatic. Id.; see also Sebelius v. Cloer, 569 U.S. 369, 373 (2013). Thus, as a
successful Vaccine Act petitioner, Ms. Shaffer is entitled to a fees and costs award.
I have reviewed the detailed billing records and cost invoices submitted with Petitioner’s
AFC Motion (see Ex. 1 entitled “Attorney Fees and Costs,” ECF No. 35-1), and approve the
requested attorneys’ fees and costs as being overall reasonable. Petitioner’s requested out-of-
pocket expenses also appear to be reasonable, and will be awarded in full.
3
In her AFC Motion, Petitioner states the following:
Petitioner has incurred a total of $644.55 in costs which, with the exception of $10.00
paid in notary costs, have been paid by Petitioner’s counsel.
AFC Motion at 8. Thus, Petitioner in essence requests to be reimbursed for $634.55 in her
attorneys’ costs, and $10.00 in her own out-of-pocket expenses.
2
III. Total Award Summary
Accordingly, I award the following amounts:
(1) $38,576.55, representing $37,942.00 in attorneys’ fees and $634.55 in costs,
in the form of a check payable jointly to Petitioner and her counsel, Kenneth
R. Behrend; and
(2) $10.00, representing Petitioner’s out-of-pocket expenses, in the form of a
check payable to Petitioner, Darla Shaffer.
Payment of this amount represents all attorneys’ fees and costs available under 42 U.S.C.
§ 300aa-15(e). The Clerk of the Court is directed to enter judgment in accordance with this
Decision.4
IT IS SO ORDERED.
/s/ Katherine E. Oler
Katherine E. Oler
Special Master
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a
notice renouncing the right to seek review.
3