In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1316V
Filed: December 12, 2016
UNPUBLISHED
*********************************
JO-ANN DODD, *
*
Petitioner, *
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Special Processing Unit (“SPU”)
AND HUMAN SERVICES, *
*
Respondent. *
*
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Kathy Brown, Kathy Brown Law, PLLC, Charleston, WV, for petitioner.
Althea Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
Dorsey, Chief Special Master:
On November 4, 2015, Jo-Ann Dodd (“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” or “Program”). Petitioner alleges that she
suffered a shoulder injury caused by the influenza vaccine she received on November
5, 2013. Petition at 1, ¶ 22. On May 20, 2016, the undersigned issued a decision
awarding compensation to petitioner based on respondent’s proffer to which petitioner
agreed. (ECF No. 23).
On July 2, 2016, petitioner filed a motion for attorneys’ fees and costs. (ECF No.
29). Petitioner requests attorneys’ fees in the amount of $19,740.00 and 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, the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.
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).
costs in the amount of $581.96 for a total amount of $20,321.96. Id. at 1. In
compliance with General Order #9, petitioner has filed a signed statement indicating
petitioner incurred no out-of-pocket expenses. See Petitioner’s Statement of Payment
of Costs, filed July 21, 2016 (ECF No. 32).
On July 21, 2016, respondent filed a response to petitioner’s motion. (ECF No.
33). 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 $14,000.00 to $16,000.00” but provides no
basis or explanation for how she arrived at this proposed range. Id. at 3.
On August 1, 2016, petitioner filed a reply. (ECF No. 34). Petitioner argues that
the reduction proposed by respondent is unsubstantiated. Id. at 1. “Petitioner
acknowledges the discretion of the Special Master in awarding attorneys’ fees and
costs, and urges that the Petitioner’s original request be granted.” Id. at 2.
At the request of the petitioner, the OSM staff attorney conducted a telephonic
status conference with the parties on December 9, 2016, to discuss the undersigned’s
concerns with petitioner’s request. See Minute Entry, dated Dec. 12, 2016. Petitioner’s
counsel indicated petitioner would be willing to file an amended motion for attorneys’
fees and costs. Respondent’s counsel indicated respondent would not require
additional time to file a response but would stand by her original response, filed on July
21, 2016.
Petitioner filed her amended motion on December 12, 2016. (ECF No. 35).
Petitioner requests attorneys’ fees in the amount of $16,770.003 and attorneys’ costs in
the amount of $581.96 for a total amount of $17,351.96. Id. at 1. By email (copying
respondent’s counsel on the correspondence), petitioner’s counsel confirmed that the
statement indicating petitioner had no out-of-pocket expenses still was correct. See
Informal Remark, dated Dec. 12, 2016.
The undersigned has reviewed the billing records submitted with petitioner’s
second 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.
3This amount represents 53 hours of attorney work at a rate of $310 and 3.4 hours of work that was
performed by petitioner’s counsel but could have been performed by a paralegal at a rate of $100.
2
Accordingly, the undersigned awards the total of $17,351.964 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Kathy Brown.
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
4This 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).
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.
3