Verity v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 11-106V
(To be Published)

************************* Special Master Corcoran
CARL J. VERITY, *
* Filed: March 13, 2017
Petitioner, *
v. * Attorney’s Fees and Costs;
* Timeliness of Fees motion.
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************

Theodore F. Goralski, Jr., Sanders Law Firm, Mineola, NY, for Petitioner.

Jennifer L. Reynaud, U.S. Dep’t of Justice, Washington, DC for Respondent.

DECISION DENYING (i) MOTION FOR EXTENSION OF TIME, AND
(ii) REQUEST FOR ATTORNEY’S FEES AND COSTS1

On February 18, 2011, Petitioner Carl J. Verity filed a petition seeking compensation under
the National Vaccine Injury Compensation Program, (“the Vaccine Program”)2. Petitioner alleged
that he suffered from Guillain-Barré syndrome and related complications as a result of receiving
an influenza vaccine. After several years of settlement negotiations, on March 24, 2014, the parties
agreed to a stipulation, which I adopted by decision two days later. See Decision, filed on March
26, 2014 (ECF No. 52). Judgment subsequently entered on May 1, 2014.

1
This decision will be posted on the United States Court of Federal Claims website, in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the
parties may object to the decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine
Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the whole decision will be available to the public in its present form. Id.

2
The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).
 Nearly three years from the date of the favorable entitlement decision, Petitioner has
requested an award of attorney’s fees. Motion for Extension of Time, dated February 20, 2017
(ECF No. 54) (“Fees App.”). In it, he requests $28,861.25 in attorney’s fees and costs.
Accompanying the fees request was also a motion for an extension of time to request attorney’s
fees. In so doing, Petitioner has acknowledged that the fees application should have been filed on
or before October 28, 2014 (180 days after judgment entered on May 1st) – but has only now been
interposed, over two years later. Fees App. at 1. Respondent reacted to the fees request in a filing
dated March 9, 2017 (ECF No. 55), noting that the request was in fact out of time, but otherwise
leaving the resolution of the motion and fees request to my discretion.

Vaccine Rule 13 provides that an application for attorney’s fees and costs must filed no
later than 180 days after judgment is entered. See Vaccine Rule 13(a). Thus, it is beyond dispute
that the present fees application is grossly out of time. However, it is not uncommon in the program
for special masters to overlook the untimeliness of fees requests filed not long after the deadline
to act. See e.g. Turner v. Sec’y of Health & Human Servs., No. 99-544, 2007 WL 4410030, *13
(Nov. 30, 2007) (awarding Petitioner attorney’s fees and costs despite the application being filed
one month after the expiration of the 180 day deadline), Carrington v. Sec’y of Health & Human
Servs., No. 99-495, 2008 WL 2683632, *13 (June. 18, 2008) (allowing an extension of time of
about three weeks outside of 180 day deadline).

This fees request, by contrast, is untimely not merely by days or weeks but years. Petitioner
has also not established a reasonable explanation for his failure to act in the period allowed for
under Rule 13, and has also provided no persuasive, let alone controlling, case law suggesting that
such a dilatory request should nevertheless be entertained. Accordingly, I do not find that under
the present circumstances excusing Petitioner’s failure to act in a timely manner is appropriate.

My decision also has the effect of denying Petitioner’s motion to extend the time to request
fees. Ordinarily, such requests are properly sought prior to expiration of the deadline to be
extended, but a post-deadline enlargement of time can also be obtained in limited circumstances
on a showing of "excusable neglect." See e.g. RCFC 6(b)(1)(A-B)(“ the court may for good cause,
extend the time: (A) with or without motion or notice if the court acts, or if a request is made,
before the original time or its extension expires; or (B) on motion made after the time has expired
if the party failed to act because of excusable neglect.”); Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (established four factors to determine excusable
neglect “(1) the danger of prejudice to the nonmoving party, (2) the length of delay and its potential
impact on judicial proceedings, (3) the reason for the delay, including whether it was within the
reasonable control of the movant, and (4) whether the movant acted in good faith”).

Here, the over two-year delay caused by acknowledged attorney ignorance of Program
rules for timely requesting an attorney's fees award cannot be attributed to excusable neglect. It is
reasonable to expect Program counsel to familiarize themselves with the Vaccine Act and rules -

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and they properly bear the brunt of their failure to do so under such circumstances. In addition,
allowing lenience in this case may open the door to future petitioners filing egregiously outside of
court or statute-prescribed deadlines, thereby subverting the entire purpose of a deadline (which at
six months is fairly generous to begin with). A failure to seek fees once so much time has passed
is not comparable to missing the deadline by a few days or weeks - and should therefore be treated
differently.

CONCLUSION

In accordance with the foregoing, I hereby DENY an award of attorney’s fees. In the
absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court SHALL
ENTER JUDGMENT in accordance with the terms of this decision.

IT IS SO ORDERED.

/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master

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