1



# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 13

- 9 99 V

Filed: October 6 , 2015

* * * * * * * * * * * * * * * * UNPUBLISHED

V ICTOR YORK

, *

* Special Master Gowen Petitioner, *

*

v. * Attorneys’ Fees and Costs

. *

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

*

* * * * * * * * * * * * * * * *

Ronald C. Homer

, Conway, Homer & Chin

- Caplan, P.C., Boston, MA

, for petitioner

. D ebra A. Filteau Begley

, United States Department of Justice, Washington , DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS 1

On D ecember 17 , 2013

, V ictor York (“ petitioner ”) filed a petition pursuant to the National Vaccine Injury Compensation Program

. 2 42 U .S.C. §§ 300aa

- 1 to

- 34 (2012 ). Petitioner alleged

that as a result of receiving a n influenza and/or a tetanus

- diptheria

- acellular pertussis vaccination

on N ovember 16, 2011

, he d eveloped chronic inflammatory demyelinating polyneuropathy

. See

Petition at Preamble, docket no. 1, filed Dec. 17, 2013

. On F e b ruary 11, 2015

, the parties filed a stipulation in which they s tated t hat a decision should be entered awarding compensation to petitioner

. See S tipulation for Award , docket no. 22, filed Feb. 11, 2015

. On February 12, 2015, a

1 Because this decision contains a reasoned explanation for the undersigned’s action in this case, the undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in accord ance with the E

- Government Act of 2002, Pub. L. No. 107

- 347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party has 14 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).

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99

- 660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa

- 1 to

- 34 (2006) (Vaccine Act or the Act). All citati ons in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.2

dec ision adopting the parties ’ stipulation was issued, award ing petitioner compensation in the amount of $182,500.00

. See Decision, docket no. 23, filed Feb. 12, 2015. Judgment entered on February 26, 2015.

On July 15, 201 5, petitioner filed a motion for attorneys ’ fees and costs

. O n July 22, 2015, respondent filed a motion to stay the proceedings o n petitioner ’ s fee application, stating that further proceedings would be duplicative of the parties ’ efforts in McCulloch v. Sec’y of HHS , No. 09

- 293, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sep t . 1, 2015)

. See Motion to Stay, docket no. 30, filed July 22, 2015

. In McCulloch , the parties litigated r e quested hourly rates for attorn eys at Conway, Homer & Chin

- Caplan ( “ CHC ” )

. On July 30, 2015, petitioner filed a response in opposition to respondent ’ s motion to stay. On September 1, 2015, the undersigned issued a

decision in McCulloch , setting forth reasonable hourly rates for the attorneys at C HC . Thereafter, the undersigned denied responden t ’ s motion to stay the proceedings in this matter

, and ordered petitioner to file an amen ded motion for attorneys’ fees and costs, consistent with the rates

established in McCulloch

. See Order, docket no. 32, filed Sept. 1, 2105. Petiti oner filed an amended motion for attorneys ’ fees and costs on September 3, 2015.

On October 6 , 2015, respondent filed a response to petitioner’s amended motion for attorneys’ fees and costs, stating that “while [she] disagrees with the analysis and findings in
[ McCulloch ], respondent has determined that her resources are not wisely use d by continuing to litigate the issues addressed in that decision.” Response to Amended Motion at 1

- 2, docket no. 3 6

, filed Oct. 6 , 2015. Accordingly, respondent indicated that she “defers to the special master’s statutory discretion in determining a reaso nable fee award for this case.” Id. at 2.

Petitioner here requests a total award of attorneys’ fees and costs in the amount of $ 2 0,453.24

. Amended Motion at 2, docket no. 3 3 , filed Sept. 3, 2015. This amount includes attorneys’ fees in the amount of $ 1 9,726.20

, and attorneys ’ costs in the amount of $ 7 10.85

. Id. at
1. Additionally, i n accordance wi th General Order #9, petitioner represents that he incur red

reimbursable c osts in pursuit of this claim in the amount of $ 1 6.19

. See Notice , docket no. 2 9 , filed

J uly 15 , 2015.

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. § 300

aa

- 15(e). Based on the reasonableness of petitioner’s request , which is consistent with the rates and reasoning established in McCulloch , the undersigned GRANTS the request for approval and payment of attorneys’ fees and costs.

Accordingly, an award should be made as follows:

(1) in the form of a check jointly payable to petitioner and to petitioner’s attorney s at Conway, Homer & Chin

- Caplan , in the amount of $ 2 0,437.05 ; and

(2) in the form of a check payable to petitioner only, V ictor York , pursuant to
General Order No. 9 , in the amount of $ 1 6.19

.3

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the

cour t SHALL ENTER JUDGMENT in accordance herewith

. 3

IT IS SO ORDERED.

s/ Thomas L. Gowen

Thomas L. Gowen Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review.