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In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 10-882V 

 (Not to be Published) 

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

 * 

VALERIA WATSON, * 

 * Filed: July 25, 2016 

 Petitioner, * 

 * Attorney’s Fees and Costs; 

 v. * Motion for Relief from Judgment; 

 * RCFC 60(b); Check Payable 

SECRETARY OF HEALTH AND * Directly to Counsel; Vaccine 

HUMAN SERVICES * Act Section 15(e) 

 * 

 Respondent. * 

 * 

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

Irving Gertel, Kagan & Gertel, Brooklyn, NY, for Petitioner. 

Glenn MacLeod, U.S. Dep’t of Justice, Washington, DC, for Respondent. 

DECISION GRANTING RELIEF FROM JUDGMENT1

On December 27, 2010, Valeria Watson filed a petition seeking compensation under the 

National Vaccine Injury Compensation Program (the “Vaccine Program”),2

 alleging that she 

suffered from Guillain-Barré syndrome (“GBS”) and/or Chronic Inflammatory Demyelinating 

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 Because this decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As 

provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published 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. Id. 

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 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.A. ' 300aa-10-' 300aa-34 (West 

1991 & Supp. 2002). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa. 
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Polyneuropathy (“CIDP”) and related complications as a result of receiving a trivalent influenza 

(“flu”) vaccine. After many years of settlement discussions, the parties were able to settle the 

matter, filing a stipulation on May 6, 2015 (ECF No. 74), detailing an amount to be awarded to 

Petitioner, which served as the basis for my decision awarding damages dated the same day (ECF 

No. 75). 

Petitioner subsequently filed a motion for attorney’s fees and costs on November 10, 2015 

(ECF No. 78), and Respondent filed a response to this motion on December 11, 2015 (ECF No. 

79). Thereafter, on March 7, 2016, I issued a decision awarding Petitioner attorney’s fees and costs 

in the amount of $26,169.80. ECF No. 81. The decision stated that the award should be made in 

the form of a check payable jointly to Petitioner and her counsel, Irving Gertel, Esq. Id. 

After entry of the Fees Judgment on April 15, 2016 (ECF No. 83), Mr. Gertel contacted 

my chambers and informed me that he was having difficulty cashing the fees and costs award 

check because Petitioner refused to endorse it. In particular (as Counsel’s Motion to Amend, dated 

June 7, 2016 (ECF No. 84)(“Motion to Amend”), makes clear), counsel’s efforts to contact Ms. 

Watson were unavailing, despite repeated phone calls and even visits to her home. Motion to 

Amend at 1-2. Counsel has accordingly requested that the Judgment be amended to provide for 

reissuance of the check payable directly to him. 

 Respondent opposed Mr. Gertel’s motion of June 24, 2016. ECF No. 85 (“Opp.”). She 

argues that the motion is improperly styled as one to amend, when in fact it actually seeks relief 

under RCFC 60(b). Opp. at 3. She further asserts that it is inappropriate to vacate or alter a Vaccine 

Program attorney’s fees judgment simply because a petitioner refuses to endorse the check, citing 

a prior decision, Ortiz-Mutilitis v. Sec’y of Health & Human Servs., No. 03-059V, 2012 WL 

3902472 (Fed. Cl. Spec. Mstr. Aug. 14, 2012) in support. Opp. at 3. She acknowledges, however, 

that other special masters have not always followed Ortiz-Mutilitis in cases where counsel has 

difficulty obtaining a petitioner’s cooperation on this kind of matter, and/or where even contacting 

the petitioner in the first place proves difficult. Id. at 4 n.7 (citing Turner v. Sec’y of Health & 

Human Servs., No. 02-1437V, 2014 WL 1493119, at *2 (Fed. Cl. Spec. Mstr. Mar. 26, 2014) 

(counsel requested check payable directly to him after case was dismissed); Gitesatani v. Sec'y of 

Health & Human Servs., No. 09–799V, 2012 WL 5025006 (Fed. Cl. Spec. Mstr. Sept. 30, 2011) 

(allowing fees in form of check directly payable to counsel where petitioner had left United States 

entirely). 

 Mr. Gertel filed a reply on June 30, 2016. ECF No. 86 (“Reply”). In it, he reiterated his 

previously-cited grounds for the relief sought in the original motion, urging me to act with equity 

in mind and asserting that he otherwise has no remedy to compel Ms. Watson’s performance (since 

he believes she is likely judgment-proof, in part because her compensation award cannot be 

invaded to satisfy his unpaid fees). Reply at 2-3. He did not, however, address Rule 60(b), nor did 
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he even cite any case law substantiating his arguments. The matter is now ripe for resolution. 

Analysis 

Under Vaccine Rule 36, Appendix B, RCFC, a Vaccine Program petitioner may seek relief 

from judgment pursuant to RCFC 60. Rule 60(b) delineates five specific grounds for altering a 

judgment, plus a catch-all permitting a party to obtain modification of a decision based upon “any 

other reason that justifies relief.” RCFC 60(b)(6). Controlling case law, however, requires 

petitioners moving under RCFC 60(b) to establish “extraordinary circumstances.” 3 Ortiz-Mutilitis,

2012 WL 3902472, at *2 (citing Ackerman v. United States, 340 U.S. 193, 198 (1950)). I deem the 

Rule 60(b) requirement that relief may only be obtained by motion as satisfied in this case, despite 

the fact that the Motion to Amend does not specifically cite the rule. RCFC 60(b). 4

There is conflicting precedent as to whether an attorney’s inability to obtain a petitioner’s 

co-signature on a fees award check is proper basis for relief from the underlying judgment. In 

Ortiz-Mutilitis, former Chief Special Master Vowell denied a request (made pursuant to RCFC 60) 

to reissue a fees check as payable solely to counsel. Ortiz-Mutilitis, 2012 WL 3902472, at *4. 

There, as here, counsel claimed he was unable to communicate with his client and have him 

endorse the fees check. But the former Chief Special Master held that counsel had remedies 

available to him to obtain performance of that act, and therefore circumstances were not 

sufficiently “extraordinary” under Rule 60(b). Unlike the present circumstances, however, in 

Ortiz-Mutilitis counsel sought relief from the judgment over a year after the date the first fees 

check was issued, suggesting that delay in requesting reissuance of the check may have played a 

role in the former Chief Special Master’s decision. 

In a more recent decision, by contrast, Goodridge v. Sec’y of Health & Human Servs., No. 

02-320V, 2014 WL 3973905 (Fed. Cl. Spec. Mstr. May 20, 2014), Special Master Hastings granted 

a request for an attorney’s fees check payable directly to counsel. In so doing, Special Master 

Hastings emphasized the policy grounds that support such relief, despite language in the Vaccine 

Act suggesting that fees are a component of a petitioner’s overall award (and therefore should 

always be payable to the petitioner). Goodridge, 2014 WL 3973905, at *5 (“[t]here is no indication 

that Congress intended to exclude payments to counsel whose former clients are unable or 

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 The Court of Federal Claims has granted relief under RCFC 60(b)(6) only where, without such relief, substantial 

rights of a party would be violated. See Freeman v. Sec’y of Health & Human Servs., 35 Fed. Cl. 280, 281 (1996) 

(finding the alleged circumstances “warrant the reopening of the case in the interest of justice”); Coleman v. Sec’y of 

Health & Human Servs., No. 06-0710, 2011 WL 6828475, *4 (Fed. Cl. Spec. Mstr. Dec. 07, 2011) (finding relief from 

judgment proper under Rule 60(b)(6) to prevent “harm to substantial rights of petitioner that would result if the 

requested relief were not granted.”). 

4 I do note, however, that my chambers instructed Mr. Gertel of the need to file a motion pursuant to RCFC 60(b), so 

it is not entirely clear why the direction was not followed. 
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unwilling to support payment of fees for their former attorneys”). Goodridge does not, however, 

address whether a Vaccine Act judgment should be revised to make fees directly payable to an 

attorney, if that attorney has demonstrated difficulties obtaining his client’s cooperation.

Here, I find that Petitioner has established sufficiently “extraordinary” circumstances for 

revising the Fees Judgment under Rule 60(b)(6). Ms. Watson is entitled to an award of attorney’s 

fees and costs in this case, and with a judgment having been entered, there is no reason to delay 

that award further. While Ortiz-Mutilitis is well-reasoned, its holding is more appropriately 

followed where the request for relief from the judgment is made so long after the fees check has 

issued that it is evident counsel has been dilatory in making the request. See RCFC60(c)(1) (motion 

seeking relief from judgment must be made “within a reasonable time” of original judgment). 

Here, however, counsel informed me of the difficulties he was having within a month of receiving 

the check, and therefore acted diligently in requesting relief from the judgment. I note as well that 

even Ortiz-Mutilitis recognizes there are “narrow circumstances” where a fees award should be 

directly payable to counsel – and that counsel are the “real party in interest” when such matters 

arise. Ortiz-Mutilitis, 2012 WL 3902472, at *4 n.9. 

 Vaccine Program judgments should not be subject to amendment as a matter of course 

simply because an attorney has difficulties obtaining his client’s cooperation in endorsing a fees 

award check. Given the facts of this case,5

 counsel could have anticipated the client communication 

problems that led him to file the present motion, and then (like the attorneys in Goodridge or 

Gitesatani) requested that payment be directly to him before issuance of the fees decision and entry 

of judgment. Moreover, as stated in Ortiz-Mutilitis (and contrary to Mr. Gertel’s arguments), 

attorneys do possess state-law remedies to enforce their rights to fees against clients. Nevertheless, 

under present circumstances – a case that is eight years old – it is in the interests of justice to afford 

counsel the relief sought in order to close the books on this matter. 

5 The parties more than once reported that delays in the progress of the case were due to difficulties Mr. Gertel had in 

locating Ms. Watson in order to communicate with her. See, e.g., Joint Status Report, dated May 2, 2014 (ECF No. 

63) at 1-2. 
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CONCLUSION 

In light of the foregoing, (1) the clerk of the Court is hereby instructed to void the original 

check for attorney’s fees and costs, and (2) Petitioner is awarded attorney’s fees and costs in this 

action in the amount of $26,169.80 the form of a check made payable solely to Petitioner’s counsel, 

Irving Gertel, Esq. 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 these terms.6

IT IS SO ORDERED. 

s/Brian H. Corcoran 

 Brian H. Corcoran 

Special Master 

6

 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by jointly filing notice renouncing their 

right to seek review.