Powers v. Secretary of Health and Human Services
Opinion
On June 1, 2018, petitioners filed a motion for interim attorneys’ fees and costs. Petitioners request $25,940.00 in interim attorneys’ fees and $15,112.43 in interim attorneys’ costs, for a total request of $41,052.43.
On June 4, 2018, respondent filed a response to petitioners’ motion explaining he defers to the undersigned to decide whether petitioners have met the legal standard for an interim fees and costs award. Resp. at 2. Should the undersigned find an award of interim attorneys’ fees and costs is appropriate, respondent “respectfully recommends that the [undersigned] exercise her discretion and determine a reasonable award.” Id. at 3.
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 42 U.S.C. § 300aa-15(e)(1). The Federal Circuit ruled that interim fee awards are permissible under the Vaccine Act in Avera v. Secretary of Health and Human Services, 515 F.3d 1343, 1352 (Fed. Cir. 2008). The special master has “wide discretion in determining the reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3 F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.”). Based on her experience and review of the billing records submitted by petitioners, the undersigned finds that an award of interim attorneys’ fees and costs is appropriate. Therefore, the undersigned GRANTS petitioners’ motion for interim attorneys’ fees and costs.
Accordingly, the court awards $41,052.43, representing interim attorneys’ fees and costs. The award shall be in the form of a check made payable jointly to petitioners and Van Cott & Talamante, PLLC in the amount of $41,052.43.
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.2
IT IS SO ORDERED.
Dated: 6/6/2018 /s/ Laura D. Millman Laura D. Millman Special Master
2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 2
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