Plona v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0227V
Filed: March 14, 2019
UNPUBLISHED
REBECCA PLONA,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
John Robert Howie, Howie Law, PC, Dallas, TX, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On February 14, 2018, 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 alleges that she developed a musculocutaneous nerve injury,
Parsonage-Turner syndrome, and tendonitis as a result of the influenza (“flu”) vaccine
she received on September 24, 2015. Petition at 1, 14. On January 2, 2019, the
undersigned issued a decision awarding compensation to petitioner based on the
parties’ stipulation. ECF No. 23.
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the Internet. 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. Because this unpublished decision contains a reasoned explanation for the
action in this case, the undersigned is required 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).
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).
On February 12, 2019, petitioner filed a motion for attorneys’ fees and costs.
ECF No. 26. Petitioner requests attorneys’ fees in the amount of $28,949.30 and
attorneys’ costs in the amount of $1,063.93. Id. at 1. In compliance with General Order
#9, petitioner filed a signed statement indicating that petitioner incurred no out-of-pocket
expenses. Id. at 8. Thus, the total amount requested is $30,013.23.
On February 25, 2019, respondent filed a response to petitioner’s motion. ECF
No. 27. 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 February 25, 2019, petitioner filed a reply. ECF No. 28. Petitioner states in
that as Respondent’s Response does not make a specific objection to petitioner’s
application for fee and costs that petitioner “does not intend to file a substantive reply”.
Id. at 1.
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.
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 $30,013.23 3 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
John Robert Howie.
The clerk of the court shall enter judgment in accordance herewith. 4
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, § 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).
4 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