McIntosh v. Sec'y of the Dep't of Health & Human Servs.

• Decision Date: 14 June 2018
• Docket Number: No. 16-29V,16-29V
• Parties: ETTA B. MCINTOSH, Petitioner, v. SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
• Court: U.S. Claims Court

ETTA B. MCINTOSH, Petitioner, v. SECRETARY OF THE DEPARTMENT OF HEALTHAND HUMAN SERVICES, Respondent.

No. 16-29V

United States Court of Federal Claims

Re-issued for Publication: July 9, 2018¹

June 14, 2018

Vaccine Act; Reasonable Attorneys' Fees and Costs; Responsibility for Review.

Jennifer Ann Gore Maglio, Maglio Christopher & Toale, PA, Sarasota, Florida, for petitioner. With her was Diana L. Stadelnikas, Maglio Christopher & Toale, PA, Sarasota, Florida.

Voris E. Johnson Jr., Senior Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C. for respondent. With him were Chad A. Readler, Acting Assistant Attorney General, C. Salvatore D'Alessio, Acting Director, Catherine E. Reeves, Deputy Director, Heather C. Pearlman, Assistant Director, Torts Branch, Civil Division.

OPINION

HORN, J.

On January 7, 2016, petitioner,² Etta B. McIntosh, filed a timely petition for compensation with the National Vaccine Injury Compensation Program, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012)alleging that a flu vaccine she received on October 28, 2013 caused her to sustain an injury subsequently diagnosed as transverse myelitis.

On August 10, 2017, the petitioner and the respondent, the Secretary of the United States Department of Health and Human Services, filed a joint stipulation resolving compensation between the parties, and on August 11, 2017, Special Master Christian J. Moran of the United States Court of Federal Claims issued a decision finding that the stipulation was "reasonable" and adopted it as the decision of the Special Master.³ See McIntosh v. Sec'y of Health & Human Servs., No. 16-29V, 2017 WL 6945565 (Fed. Cl. Spec. Mstr. Aug. 11, 2017). Judgment was entered on August 18, 2017.

On November 29, 2017, petitioner's counsel filed a motion for attorneys' fees and reimbursement of case costs with Special Master Moran. Petitioner's counsel noted in the motion that, "[p]rior to filing this motion undersigned counsel attempted to resolve the amount of attorneys' fees and costs with Respondent, providing the relevant materials to the Respondent's counsel on September 20, 2017, but unfortunately, Counsel for Respondent has advised they are no longer reviewing motions for attorneys' fees." In the motion, petitioner's counsel indicated that "[p]etitioner incurred attorneys' fees in the litigation of this matter in the amount of $15,139.80," and "[p]etitioner incurred case costs in the litigation of this matter in the amount of $1,307.98." Therefore, petitioner's counsel asked the Special Master to award attorneys' fees and costs in the amount of $16,447.78.

On December 13, 2017, respondent, the Secretary of the United States Department of Health and Human Services, represented by the United States Department of Justice, filed a response, and indicated that "[n]either the Vaccine Act nor Vaccine Rule 13 [of the Vaccine Rules of the United States Court of Federal Claims, Appendix B (2017) (Vaccine Rules)] contemplates any role for respondent in the resolution of a request by a petitioner for an award of attorneys' fees and costs." Respondent continued:

To the extent the Special Master is treating petitioner's request for attorneys' fees and costs as a motion that requires a response from respondent, respondent states the following: Respondent is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case. See 42 U.S.C. § 300aa-15(e)(1)(A)-(B). The Federal Circuit has made it clear that "the determination of the amount of reasonable attorneys' fees is within the special master's discretion." Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993). Special Masters are thus accorded "wide discretion in determining the reasonableness" of a petitioner's request for reasonable attorneys' fees and costs. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994).

Respondent concluded by stating: "Respondent respectfully recommends that the Special Master exercise his discretion and determine a reasonable award for attorneys'fees and costs." (footnote omitted). Respondent, the Secretary of the Department of Health and Human Services, added in a footnote:

Respondent no longer has sufficient resources to provide detailed objections to requests for attorneys' fees and costs, which it previously provided as a courtesy to the Court. In addition, in respondent's experience, providing detailed objections only leads to "a second major litigation" over fees, as cautioned against by the Supreme Court in Fox [ v. Vice, 563 U.S. 826 (2011)⁴], as well as supplemental fee requests that are routinely granted by the Court (i.e., "fees for fees"), which negate any purpose of the objections asserted by respondent.

In her reply brief, petitioner's counsel noted that "[p]etitioner provided both detailed fees and costs invoices, as well as undersigned counsel's Affidavit, and Petitioner's Statement Regarding Costs." In addition, petitioner's counsel stated, "[r]espondent has not submitted evidence or persuasive argument in opposition. For these reasons, Petitioner has demonstrated the reasonableness of her requested fees and case costs." Petitioner's counsel, however, also emphasized that:

Respondent incorrectly claims that it has no part in Petitioner's request for compensation under section 15(e) of the Vaccine Act. However, Respondent has had and does have an important role in responding to motions for attorneys' fees and costs in that the Act contemplates attorneys' fees and costs as "part of [Petitioner's] compensation. . ." 42 U.S.C. 300aa-15(e)(1). Moreover, section 20(b) of the Vaccine Act, lays out general procedures and establishes deadlines for Respondent to respond to motions filed by Petitioner. 42 U.S.C. 300aa-20(b)(1).[⁵]

(internal citation omitted; second bracket in original).

On December 18, 2017, Special Master Moran issued his decision on attorneys' fees and costs in the above captioned McIntosh case. The Special Master's very brief decision stated in full:

After receiving compensation through the Vaccine Program, Etta McIntosh filed a motion for attorneys' fees and costs. Ms. McIntosh is awarded the full amount of her request, $16,447.78.

* * *

Ms. McIntosh alleged that the influenza vaccination caused her to suffer transverse myelitis. The parties agreed to a stipulation resolving the amount of compensation. The stipulation was incorporated into a decision awarding Ms. McIntosh compensation. Decision, issued Aug. 11, 2017, 2017 WL 3910145. With the merits of Ms. McIntosh's case resolved, the parties addressed attorneys' fees and costs.

Ms. McIntosh filed an attorneys' fees and costs petition on November 29, 2017, requesting $15,139.80 in fees and $1,307.98 in costs. Ms. McIntosh did not incur any costs personally.

The Secretary filed a response representing that he "is satisfied the statutory requirements for an award of attorneys' fees and costs are met in this case." The Secretary did not raise any specific objections and recommended that the Special Master "exercise his discretion" when determining a reasonable award.

Ms. McIntosh reaffirmed her fees request in a reply filed on December 14, 2017. Ms. McIntosh also argued in her reply that the Secretary's position of not presenting any specific objections and deferring to the Special Master's discretion was overly burdensome on petitioners and Special Masters.

This matter is now ripe for adjudication.

* * *

Because Ms. McIntosh received compensation, she is entitled to an award of reasonable attorneys' fees and costs. 42 U.S.C. § 300aa-15(e).

Pursuant to the rationale established in Swintosky v. Sec'y of Health & Human Servs., No. 12-403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6, 2017),[⁶] the Secretary has waived any objections to the amount of feesrequested. Absent any objections, Ms. McIntosh's request for attorneys' fees and costs is GRANTED IN FULL:

A lump sum of $16,447.78 in the form of a check made payable to petitioner and petitioner's attorney, Diana L. Stadelnikas.[⁷]

These amounts represent reimbursement attorneys' fees and other litigation costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.

McIntosh v. Sec'y of Health & Human Servs., 2017 WL 6945565, at *1 (capitalization, asterisks, and emphasis in original; footnotes and internal citations omitted).

On January 16, 2018, respondent, the Secretary of the Department of Health and Human Services, as represented by the United States Department of Justice, filed a motion for review in this court in the above captioned McIntosh case of Special Master Moran's decision on attorneys' fees and costs. Respondent states:

Respondent's enumerated objection to the Decision is as follows: The special master abused his discretion when he failed to make a finding regarding the reasonableness of petitioner's application for attorneys' fees and costs, and instead simply awarded petitioner "the full amount of his request" on the sole asserted basis that respondent "has waived any objections to the amount of fees requested."

Respondent indicates in the memorandum filed in this court with its motion for review that the Special Master "failed to fulfill his statutory obligation to make a finding regarding the reasonableness of petitioner's application for attorneys' fees and costs, and instead simply awarded petitioner 'the full amount of her request' on the sole - and erroneous - basis that respondent 'has waived any objections to the amount of fees requested.'" Respondent continues: "The special master's Decision constitutes an improper abrogation of his statutory duty and a patent abuse of discretion." Therefore, respondent argues that: "The Decision must be reversed, and the matter should be remanded back to the special master for an appropriate determination regarding the...