Gillespie v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0953V
(not to be published)
JUSTIN M. GILLESPIE,
Chief Special Master Corcoran
Petitioner,
v. Filed: November 8, 2019
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Joseph Michael Russell, Von Briesen & Roper, S.C., Milwaukee, WI, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On July 17, 2017, 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) following the receipt of his November 8, 2016 influenza (“flu”)
vaccination. (Petition at 1). On April 1, 2019, a decision was issued by then-Chief
Special Master Dorsey, awarding compensation to Petitioner based on the Respondent’s
proffer. (ECF No. 50).
1 Although I have not designated this Decision for publication, it will be made available 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, I agree that the
identified material fits within this definition, I 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 has now filed a motion for attorney’s fees and costs, dated October 2,
2019, (ECF No. 55), requesting a total award of $37,600.92 (representing $36,828.00 in
fees and $772.92 in costs). In accordance with General Order #9, counsel for Petitioner’s
counsel represents that he incurred no out-of-pocket expenses. (ECF No. 58-1.)
Respondent reacted to the motion on October 16, 2019 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
57). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorneys’ fees and costs. I
award a total of $37,600.92 (representing $36,828.00 in attorney’s fees and $772.92 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and his counsel,
Joseph Michael Russell, Esq. In the absence of a timely-filed motion for review (see
Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with
this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2