The opinion
In the United States Court of Federal
Claims
OFFICE OF SPECIAL MASTERS
******************** *
JOSEPHINE PLOTKIN, *
* No. 16-1249V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: May 29, 2020
* Reissued: September 1, 2022
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * attorneys’ fees and costs,
* deceased petitioner without estate
Respondent. *
******************** *
Anne C. Toale, Maglio, Christopher & Toale, Sarasota, FL, for deceased
petitioner;
Darryl R. Wishard, U.S. Dep’t of Justice, Washington, DC, for respondent.
ORDER REGARDING MOTION FOR ATTORNEYS’ FEES AND COSTS 1
A motion for attorneys’ fees and costs has been pending for nearly two years
as various issues were resolved. The motion has recently become ripe. Because
the petitioner has died and because no one has substituted for her, an award of
attorneys’ fees and costs cannot be made at this time.
1
The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this order on its
website (http://www.cofc.uscourts.gov/aggregator/sources/7). This posting will make the order
available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have 14 days
to file a motion proposing redaction of medical information or other information described in 42
U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the
document posted on the website.
Background and Procedural History
Represented by an attorney from the Maglio, Christopher & Toale law firm,
Josephine Plotkin filed a petition on September 30, 2016. Ms. Plotkin alleged an
influenza vaccination caused her to suffer Guillain-Barré syndrome. This aspect,
the primary aspect of the case, resolved relatively smoothly with a decision
adopting the parties’ stipulation issuing on November 27, 2017. 2017 WL
7795124.
Ms. Plotkin submitted a motion to redact the decision. No form of evidence,
such as an affidavit, corroborated the factual assertions in the motion for redaction.
The motion for redaction stated that Ms. Plotkin and her estranged husband
declared bankruptcy. Pet’r’s Mot. for Redaction, filed Dec. 11, 2017, ¶ 3. In a
status conference held on January 9, 2018, Ms. Plotkin’s attorney seemed to realize
for the first time that a bankruptcy filing might implicate Ms. Plotkin’s ability to
receive compensation through the Vaccine Program. See order issued Jan. 16,
2018; Pet’r’s Status Rep., filed Feb. 20, 2018, ¶ 3. Ms. Plotkin withdrew her
motion to redact. Id. ¶ 1.
Attorneys at Maglio, Christopher & Toale attempted to figure out how to
proceed in light of the bankruptcy. This process took more than one year.
Eventually, on May 29, 2019, an attorney from a law firm in New Jersey sent a
letter to notify the parties in Ms. Plotkin’s bankruptcy about an intent to reopen the
case. Exhibit 32. This attorney stated that he was acting for Ms. Plotkin through a
power of attorney Ms. Plotkin had granted to her daughter, Audrey Maher. Id.; see
also exhibit 34 (Ms. Plotkin’s durable power of attorney). The bankruptcy court
granted the motion to reopen and determined that the settlement proceeds from the
Vaccine Program were exempt. Exhibit 32 at 26-27 (June 17, 2019 order). This
action allowed the attorney at Maglio, Christopher & Toale who was representing
Ms. Plotkin (Anne Toale) to release the funds, which Ms. Toale had been holding
pending a ruling from the bankruptcy court.
Ms. Plotkin died on July 4, 2019. Exhibit 26. Her death, by itself, did not
implicate an immediate obligation to file a motion to substitute pursuant to Rule
25(a)(1) of the Rules of the Court of Federal Claims because this rule allows time
“to serve the relevant papers on an estate representative before the deadline for
substitution is triggered.” Christner v. Sec’y of Health & Human Servs., 145 Fed.
2
Cl. 633, 635 (2019). Based upon information Ms. Maher provided, Ms. Toale
communicated that an estate for Ms. Plotkin has not been created.
Before Ms. Plotkin died, she filed a motion for attorneys’ fees and costs on
June 1, 2018. CM-ECF 51. While the proceedings in bankruptcy first delayed and
then complicated resolving the motion for attorneys’ fees and costs, the parties
have responded to several orders for their positions and legal authority. In a recent
submission, Ms. Toale has requested that the check for attorneys’ fees and costs be
made out to her.
Ms. Toale cannot be awarded attorneys’ fees and costs directly. As
explained below, awards for attorneys’ fees and costs must be made to a party and
presently there is no party to whom an award can be made.
Statutory Scheme
Section 15 of the Vaccine Act addresses “compensation.” Within section
15, paragraph (a) authorizes compensation to a petitioner for unreimbursed medical
expenses, lost earnings, death, and pain and suffering. See Heinzelman v. Sec’y of
Health & Human Servs., 681 F.3d 1374, 1379 (Fed. Cir. 2012). Other paragraphs
within section 15 limit potential damages. For example, § 15(d)(1) prohibits
punitive or exemplary damages. Section 15(d)(2) restricts, with some exceptions,
compensation to benefit the person who suffered the vaccine-related injury.
Sections 15(g) and 15(h) make the Vaccine Program a secondary payer, except to
Medicaid. Section 15(i) specifies the source of funds, the Vaccine Injury
Compensation Trust Fund.
Ms. Toale’s motion for an award of attorneys’ fees and costs rests upon
section 15(e). This paragraph provides “In awarding compensation on a petition
filed under section 300aa–11 of this title the special master or court shall also
award as part of such compensation an amount to cover- (A) reasonable attorneys'
fees, and (B) other costs, incurred in any proceeding on such petition.” 42 U.S.C.
§ 300aa–15(e).
Whether an attorney in the Vaccine Program may directly receive attorneys’
fees and costs (i.e., has standing to pursue attorneys’ fees and costs independent of
a client) is a question of law. See Shealey v. Wilkie, 946 F.3d 1294, 1297 (Fed.
Cir. 2020).
Analysis
3
The issue is whether attorneys’ fees belong to the attorney such that
attorneys may pursue them without a client or without a client’s consent. While
the Federal Circuit has not addressed this question in the Vaccine Program, the
Federal Circuit has considered the issue in the context of cases interpreting other
statutes: the Civil Service Reform Act, the Whistleblower Protection Act, and the
Equal Access to Justice Act. 2
Civil Service Reform Act. On at least three occasions, the Federal Circuit
has interpreted the attorneys’ fees and costs provision for federal employment
actions, 5 U.S.C § 7701(g)(1). In the first case, a government employee, Ms.
McBeen, settled her claim against her employing agency and released the agency
from any claim made by Ms. McBeen’s former attorney, Allen L. McAlear. Mr.
McAlear sought attorneys’ fees from the Merit Systems Protection Board (MSPB),
which denied them. On appeal, the Federal Circuit stated that the Civil Service
Reform authorizes an award of attorneys’ fees “to a prevailing party.” Because
Ms. McBeen “has plainly and explicitly withdrawn any request to the Board for
attorney fees, . . . there was no cognizable request for such fees before the MSPB.”
McAlear v. Merit Systems Protection Bd., 806 F.2d 1016, 1017 (Fed. Cir. 1986).
The Federal Circuit reasoned, “Petitioner McAlear, even though he is McBeen’s
former lawyer-representative, cannot, on his own and contrary to the expressed
wishes and agreement of the prevailing party, call upon the MSPB to decide the
reasonableness of his fee request or to impose a lien on the settlement funds
awarded to McBeen.” Id.
Roughly two years after McAlear, the Federal Circuit was again called upon
to interpret 5 USC § 7701(g) in Jensen v. Dep’t of Transportation, 858 F.2d 721
(Fed. Cir. 1988), although the Federal Circuit did not cite McAlear in Jensen. Ms.
Jensen retained attorney Charles Padorr to challenge her removal from government
service. In the retainer, Ms. Jensen “agreed to pay [Mr.] Padorr 40 percent of the
amount of any backpay award, or the amount of any attorney fee award, whichever
was greater.” Id. at 722. Ms. Jensen received a backpay award of $20,771.20, and
40 percent of that amount is $8,308.48. Mr. Padorr agreed to accept $5,846.24 and
to release Ms. Jensen from her obligation to pay the balance of $2,462.24 in
exchange for Ms. Jensen’s authorization for his right to pursue and to receive any
attorney fee award from the Board. Id. at 722-23. The Board found that a
2
Ms. Toale has cited decisions from special masters. See Pet’r’s Status Rep. regarding
Estate, filed Mar. 3, 2020, at 2-4. However, those decisions are not binding. Boatmon v. Sec’y
of Health & Human Servs., 941 F.3d 1351, 1358 (Fed. Cir. 2019).
4
reasonable attorneys’ fees award was $16,423.53, but withheld payment of
$5,846.24 because Mr. Padoor had refused to reimburse Ms. Jensen that amount.
Mr. Padoor sought relief from the Federal Circuit to collect the remaining
$5,846.24. Id. at 723.
The Federal Circuit ruled in favor of Mr. Padoor. The Federal Circuit stated
“the board must make the attorney fee award payable to the attorney.” Id. at 724.
The Federal Circuit followed an earlier decision from the MSPB, Blessin v. Dep’t
of the Navy, 26 M.S.P.R. 615 (1985), and cases interpreting 42 U.S.C. § 1988.
The effect of Jensen, however, appears limited. In the next Federal Circuit
case interpreting the Civil Service Reform Act, Willis v. Gov’t Accountability
Office, 448 F.3d 1341 (Fed. Cir. 2006), 3 the Federal Circuit noted that Jensen did
not discuss Evans v. Jeff D., 475 U.S. 717 (1986), in which the Supreme Court
held that a party has the right to request fees under 42 U.S.C. § 1988. The Federal
Circuit otherwise explained that Jensen correctly distinguished the right of an
attorney to collect awarded fees from the right of an attorney to seek fees in the
first instance. 448 F.3d at 1347. Thus, Jensen did not help resolve Willis.
In Willis, the former government employee, Sandra P. Davis, first retained
Janice F. Willis to represent her. Ms. Davis then discharged Ms. Willis and
retained Nora V. Kelley. Ms. Davis received compensation. Ms. Davis filed a
motion for attorneys’ fees and costs, requesting fees for Ms. Kelly’s work and a
portion of the fees Ms. Willis billed. Id. at 1342-43. Ms. Willis intervened, among
other reasons, to seek fees that Ms. Davis had declined to advance. The MSPB did
not award all the fees Ms. Davis had requested for fees and concluded that Ms.
Willis could not seek fees without Ms. Davis’s consent because an attorney did not
have this “independent right.” Id. at 1343. Ms. Willis then appealed to the Federal
Circuit.
The Federal Circuit defined the issue as whether Ms. Willis “has standing to
appeal the Board’s decision to this court.” While Ms. Willis asserted two theories–
first, that she has a separate statutory right to seek fees and second, that she has the
right to claim fees that Ms. Davis had requested but the Board had declined, the
Federal Circuit rejected both. With respect to the first theory of standing, the
Federal Circuit held that section 7701(g) does not grant “attorneys a legally
3
The GAO Board may award attorneys’ fees and costs available pursuant to 5 U.S.C.
§ 7701(g) through 31 U.S.C. § 753(e)(1).
5
protected interest independently to assert a claim for a fee award.” Id. at 1345.
With respect to the second theory, the Federal Circuit ruled that Ms. Willis lacked
prudential standing. Thus, the Federal Circuit dismissed the appeal for lack of
standing. Id. at 1349.
Whistleblower Protection Act. In one case, the Federal Circuit commented
on whether the Whistleblower Protection Act allows an attorney to obtain fees
directly.
In this case, after Elisa Rumsey prevailed in front of the MSPB on her claim
that the government had retaliated against her, she sought attorneys’ fees. The
Board declined to award attorneys’ fees for work performed by one of Ms.
Rumsey’s attorneys, Beth Slavet. Rumsey v. Dep’t of Justice, 866 F.3d 1375,
1376 (Fed. Cir. 2017).
By the time of the fee request, the relationship between Ms. Rumsey and
Ms. Slavet had become strained regarding the amount of fees. Although Ms.
Slavet had intervened before the Board to defend her requested amount of fees,
Ms. Rumsey stated that “‘[T]here may be some truth to this claim that Ms. Slavet’s
time charges should not be fully compensable.’” Id. at 1378. The administrative
judge and then the full Board denied the request for Ms. Slavet’s fee because Ms.
Rumsey did not support the request. In opposition to the request for fees, the
government also argued that because Ms. Slavet had become a federal employee,
conflict of interest statutes prevented an award of attorneys’ fees to Ms. Slavet. Id.
The thrust of the Federal Circuit’s opinion was to reverse the finding that
Ms. Slavet was not entitled to any attorneys’ fees. The Federal Circuit directed the
Board to fashion a reasonable award because an admission that some hours may
not be reasonable is not the same as admitting that all hours are not reasonable. Id.
at 1381.
For purposes of Ms. Plotkin’s case, the Federal Circuit’s statements
regarding the conflict-of-interest statutes are more relevant. The Federal Circuit
held that Ms. Slavet’s employment with the federal government was not relevant.
Attorneys’ fees are “properly the property of Ms. Rumsey, as the employee, not
[Ms.] Slavet, the attorney.” Id. at 1382.
Equal Access to Justice Act. In at least two cases, the Federal Circuit has
considered payments to attorneys directly under the Equal Access to Justice Act.
There is also one case from the United States Supreme Court addressing the Act.
6
In the first case, FDL Technologies, Inc. prevailed in an action before the
Armed Services Board of Contract Appeals, which awarded FDL Technologies
fees for the work its attorney, Dale C. Nathan, performed. FDL Technologies filed
for bankruptcy. After FDL Technologies did not receive payment, it sued the
United States in the Claims Court requesting, among other things, that the
attorneys’ fees “be paid directly to Nathan.” FDL Technologies, Inc. v. United
States, 967 F.2d 1578, 1579 (Fed. Cir. 1992). The United States, then, sent a check
to the trustee in bankruptcy for FDL Technologies. With this payment, the Claims
Court dismissed the action.
On appeal, the Federal Circuit stated that the issue is “whether an attorney is
entitled to direct payment of fees awarded to a prevailing party in an agency
adjudication pursuant to the EAJA, 5 U.S.C. § 504(a)(1).” Id. at 1580. Relying
upon the statute’s language that authorizes “fees and other expenses” “to a
prevailing party” and relying upon Phillips v. General Services Admin., 924 F.2d
1577 (Fed. Cir. 1991), the Federal Circuit ruled that “the prevailing party, and not
counsel, is entitled to attorney fees awarded under 5 U.S.C. § 504(a)(1).” FDL
Technologies, 967 F.2d at 1581. Thus, the award of attorneys’ fees to the bankrupt
(prevailing) party would make those fees part of the estate, subject to claims of
various creditors.
Whether funds awarded for attorneys’ fees are available to entities other than
the attorney who generated the fees underlies the Supreme Court’s analysis in
Astrue v. Ratliff, 560 U.S. 586 (2010). There, the Supreme Court evaluated the
Equal Access to Justice Act and statutes (31 U.S.C § 3711(a), 3716(a)) that
authorize the United States government to offset debts administratively. In this
case, Ruby Willow Kills Ree prevailed on a claim for Social Security benefits.
Ms. Kills Ree requested attorneys’ fees for her attorney, Catherine Ratliff, and was
awarded $2,112.60 in attorneys’ fees. However, before the United States paid the
attorneys’ fees, the United States learned that Ms. Kills Ree owed a debt to the
government. Thus, the United States sought to use the award of attorneys’ fees to
satisfy part of Ms. Kills Ree’s debt. Id. at 589.
In a unanimous opinion, the Supreme Court stated that the “the term
‘prevailing party’ in subsection (d)(1)(A) carries its usual and settled meaning—
prevailing litigant.” Id. at 591. The Supreme Court reached this conclusion by a
close textual analysis. In doing so, the Supreme Court distinguished the general
language in the Equal Access to Justice Act from language in the Social Security
7
Act that explicitly authorizes payments to attorneys directly. Id. at 595, citing 42
U.S.C. § 406(b)(1)(A). 4
Ratliff, in turn, was relied on by the Federal Circuit in its final relevant case.
In introducing the background to this case, the Federal Circuit stated that it
“involves a recurring problem—a claim for statutory attorney’s fees by counsel
where the client declines to authorize the request for fees.” Shealey v. Wilkie, 946
F.3d 1294, 1295 (Fed. Cir. 2020). In particular, Matthew Shealey retained
attorneys from the Veterans Legal Advocacy Group, Meghan Gentile and Harold
Hoffman, to represent him in his attempt to gain benefits. However, after Ms.
Gentile and Mr. Hoffman recommended that Mr. Shealey dismiss his case, Mr.
Shealey discharged them, obtained new counsel, and eventually became the
prevailing party on his claim. Id.
Ms. Gentile and Mr. Hoffman filed an “EAJA application in Mr. Shealey’s
name,” requesting $4,061.60 for fees incurred representing Mr. Shealey. Mr.
Shealey opposed the request. The Court of Appeals for Veterans Claims allowed
the attorneys to intervene but dismissed the application due to a lack of standing.
The attorneys then appealed. Id. at 1297.
Based largely upon Ratliffe and Willis, the Federal Circuit affirmed the
dismissal for lack of standing. The Federal Circuit seemed to suggest that the
attorneys might bring an action in state court against their former client for his
breach of the retainer agreement. Id. at 1299-1300.
In summary, these cases illustrate that in disparate circumstances, the
Federal Circuit has ruled that the award of attorneys’ fees belongs to the client, not
to the attorney. In some cases, the client opposed the attorney’s application. See
McAlear (the client waived the attorney’s fees in a settlement agreement), Willis
(the client objected in part to the amount of attorney’s fees), and Shealey (the client
objected entirely). In other cases, payment to the client would interfere or frustrate
4
This statute states, “Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an attorney, the court may determine
and allow as part of its judgment a reasonable fee for such representation, not in excess of 25
percent of the total of the past-due benefits to which the claimant is entitled by reason of such
judgment, and the Commissioner of Social Security may, notwithstanding the provisions of
section 405(i) of this title, but subject to subsection (d) of this section, certify the amount of such
fee for payment to such attorney out of, and not in addition to, the amount of such past-due
benefits.” 42 U.S.C. § 406(b)(1)(A).
8
the attorney’s ability to receive the money paid. See FDL Technologies (client in
bankruptcy), Ratliff (client in debt to the United States). The only exception
(Jensen) seems to have been tightly limited to its unique factual circumstances.
Against these cases, Ms. Toale’s strongest argument relies upon the statutory
language, attempting to distinguish the Vaccine Act from the statutes the Federal
Circuit interpreted. See Pet’r’s Status Rep. regarding Estate, filed Mar. 13, 2020,
at 3-4. In Ms. Toale’s view, because section 15(e) does not say “to a prevailing
party,” the lack of specificity allows an award to be paid directly to her.
Although Ms. Toale’s argument has some validity, it ultimately fails to
persuade. First, paragraph (e) rests within the larger section (42 U.S.C. § 300aa–
15) on compensation. Another part of section 15, paragraph (i) provides,
“Payment of compensation under the Program to a petitioner for a vaccine-related
injury or death associated with the administration of a vaccine on or after October
1, 1988, shall be made from the Vaccine Injury Compensation Trust Fund
established under section 9510 of title 2642.” 42 U.S.C. § 300aa–15(i)(2).
Paragraph (i) sheds light on the meaning of paragraph (e) because statutes are
interpreted as a whole. Figueroa v. Sec’y of Health & Human Servs., 715 F.3d
1314, 1318 (Fed. Cir. 2013). The key portion of paragraph (i) is: “Payment of
compensation . . . to a petitioner . . . shall be made from the . . . Trust Fund.” The
Vaccine Act does not specify a source of funding for payments to anyone other
than the petitioner. If Ms. Toale’s argument were accepted, then the source of
funding a payment of attorneys’ fees and costs not “to a petitioner” is not readily
apparent. 5
Second, “similar language in the various fee-shifting statutes should be
interpreted alike absent some indication to the contrary.” Avera v. Sec’y of Health
& Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). The rationale behind the
fee-shifting provisions of the Civil Service Reform Act, the Whistleblower Act, the
Equal Access to Justice Act, and the Vaccine Act seem similar in that Congress
wanted to encourage attorneys to represent claimants. This policy goal, however,
did not lead the Federal Circuit to direct payments to attorneys McAlear, Willis,
Slavet, Nathan, Gentile, or Hoffman. Attorneys McAlear, Willis, Slavet, Nathan,
Gentile, and Hoffman, to greater and lesser degrees, helped their clients. Thus,
whether they “deserved” payment was not an issue. The issue for them and for
5
Acting through the Health Resources and Services Administration, the Secretary reports
payments of attorneys’ fees and costs. See https://www.hrsa.gov/vaccine-compensation/
data/index.html.
9
Ms. Toale is whether Congress has authorized a payment to the attorneys without
involvement of a client.
Third, when Congress has wanted to authorize agencies to pay attorneys
directly, Congress has included specific language. Congress did so for claimants
seeking Social Security benefits, see footnote 4 above, and for veterans.6 The lack
of comparable language in the Vaccine Act suggests that Congress intended to
follow the general practice in that attorneys’ fees belong to the client, not to the
attorney. As a further comparison, the “prevailing party” language does not appear
in the Vaccine Act because the petitioner does not need to prevail (i.e., be awarded
damages) for attorneys’ fees and costs to be available. The Vaccine Act only
requires that petitioners have good faith and a reasonable basis to pass the
threshold requirement for attorneys’ fees and costs. 42 U.S.C. § 300aa—15(e)(1).
Ms. Toale’s predicament is that she no longer has a client. Her client,
Josephine Plotkin, died. There is no estate. As such, there is no one to receive an
award. 7 In such a situation, a court cannot award attorneys’ fees and costs. See
Cornell v. Wilkie, 32 Vet. App. 69 (2019) (revoking award of attorneys’ fees and
costs after claimant died and no successor was found); In re Marriage of Kirby,
280 So. 3d 98 (Fla. Dist. Ct. App. 2019) (revoking award of attorneys’ fees against
a litigant who ceased to be present because she died and no estate had been
created).
Under the circumstances present for Ms. Toale, the undersigned cannot now
award attorneys’ fees and costs.8 Ms. Toale is given a choice. She may file a
status report within 30 days, confirming that Ms. Maher has agreed to create an
estate for Ms. Plotkin and setting forth a schedule when such estate will be
6
See 38 U.S.C. § 5904(d)(3) (stating “the Secretary may direct that payment of any fee to
an agent or attorney under a fee arrangement described in paragraph (1) be made out of such
past-due benefits”), cited in Ravin v. Wilkie, __ F.3d __, 2020 WL 1909110 (Fed. Cir. 2020).
7
A separate question is assuming that Ms. Plotkin authorized a request for attorneys’ fees
before she died, whether that authorization survives Ms. Plotkin’s death.
8
The undersigned, therefore, is not determining whether the fees Ms. Plotkin incurred in
reopening her bankruptcy case could be reimbursed. Similarly, the undersigned is not
determining whether any fees incurred to create an estate for Ms. Plotkin can be reimbursed.
The undersigned also provides no guidance as how any assets in Ms. Plotkin’s estate would be
distributed among creditors, such as Ms. Toale.
10
established. 9 Alternatively, and if Ms. Toale does not file a status report in 30
days, the undersigned will issue this order as a decision, denying Ms. Toale’s
motion for attorneys’ fees and costs. Ms. Toale, then, might file a motion for
review of the decision. 10 If an appellate authority holds that the undersigned may
grant payment to Ms. Toale directly, then the undersigned will determine a
reasonable amount of attorneys’ fees and costs.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
9
It appears that probate courts in New Hampshire are operating during the coronavirus
pandemic. See https://www.courts.state.nh.us/index.htm.
10
As for whether Ms. Toale possesses standing to file a motion for review, Ms. Toale
may wish to review Brannigan v. Sec’y of Health & Human Servs., No. 14-675V, 2016 WL
7338616 (Fed. Cl. Nov. 23, 2016).
11