Thomure v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-0322V
Filed: April 12, 2016
Unpublished
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BEATRICE THOMURE, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On March 30, 2015, 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 alleged that she suffered a brachial plexus injury as a result
of an influenza (“flu”) vaccination she received on October 1, 2013. On November 2,
2015, a decision was issued awarding compensation to petitioner based on
respondent’s proffer. (ECF No. 21).
On March 10, 2016, petitioner filed a motion for attorneys’ fees and costs. (ECF
No. 26). Petitioner requests attorneys’ fees in the amount of $16,642.00, attorneys’
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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.
2National 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).
costs in the amount of $679.67, and petitioner’s out-of-pocket costs in the amount of
$422.95, 3 for a total amount of $17,744.62. Id. at 1.
On March 18, 2016, respondent filed a response to petitioner’s motion. (ECF No.
28). 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 she “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in
this case.” Id. at 2. Additionally, she “asserts that a reasonable amount for fees and
costs in the present case would fall between $12,000.00 and $14,000.00,” but provides
no basis or explanation for how she arrived at this proposed range. Id. at 3.
On March 28, 2016, petitioner filed a reply. (ECF No. 29). Petitioner argues that
respondent’s unfiled “survey” of fees and costs awarded in past cases is “intended to
suggest a ‘cap’ on attorneys’ fees and costs” and “provides no helpful information” for
the undersigned to use in making her determination. Id. at 4-5. Petitioner further
argues that respondent has “not specifically object[ed] to any particular item contained
in [her] application,” and instead offers only a “blanket” objection, supported by nothing
more than “a vague and unhelpful estimation.” Id. at 6-8.
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.
Petitioner requests supplemental attorneys’ fees in the amount of $425.00 for
preparing the reply brief. (ECF. No. 30). The undersigned reviewed the submitted
billing records and finds the request for additional fees to be reasonable; the full amount
requested, $425.00, is awarded. Thus, the total amount awarded for attorneys’ fees
and costs is $18,169.62.
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 and supplemental motion for attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $18,169.62 as follows:
(1) A lump sum of $17,746.67 4, representing reimbursement for attorneys’
fees and costs, in the form of a check payable jointly to petitioner and
petitioner’s counsel, Ronald C. Homer; and
3 In compliance with General Order #9, petitioner filed a signed statement indicating she incurred $422.95
in out-of-pocket expenses.
4 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
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(2) A lump sum of $422.95, representing reimbursement for petitioner’s
costs, in the form of a check payable to petitioner, Beatrice Thomure.
The clerk of the court shall enter judgment in accordance herewith. 5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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).
5 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.
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