Keller v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0680V
Filed: September 30, 2019
UNPUBLISHED
CECELIA KELLER,
Petitioner,
v. Special Processing Unit (SPU);
Attorneys’ Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Jessica Anne Olins, Maglio Christopher & Toale, PA, Washington, DC, for petitioner.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On May 14, 2018, Cecelia Keller (“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 received an influenza (“flu”)
vaccine on November 14, 2016, and thereafter suffered a shoulder injury related to
vaccine administration (“SIRVA”). Petition at 1-3. On August 28, 2019, the undersigned
issued a decision awarding compensation to petitioner based on the respondent’s
proffer. ECF No. 39.
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 Because this unpublished decision contains a reasoned explanation for the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 September 25, 2019, petitioner filed a motion for attorneys’ fees and costs.
ECF No. 43. Petitioner requests attorneys’ fees in the amount of $19,758.90 and
attorneys’ costs in the amount of $1,270.11. 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 1. Thus, the total amount requested is $21,029.01.
On September 26, 2019, respondent filed a response to petitioner’s motion. ECF
No. 44. Respondent argues that “[n]either the Vaccine Act nor Vaccine Rule 13
requires respondent to file a response to 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 requests that the Court exercise its discretion and
determine a reasonable award for attorneys’ fees and costs.” Id. at 3.
On September 26, 2019, petitioner filed a reply. ECF No. 45. Petitioner disputes
respondent’s position that he has no role in resolving attorneys’ fees and costs and
further reiterates his view that his attorneys’ fees and costs in this case are reasonable.
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 $21,029.013 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Jessica Anne Olins. Petitioner requests check be forwarded to Maglio
Christopher & Toale, PA, 10650 Main Street, Suite 710, Sarasota, Florida 34236.
The clerk of the court shall enter judgment in accordance herewith.4
3This 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