P.S. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 16-834V

Filed: March 7, 2023

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

P.S., *

* To Be Published

Petitioner, *

v. * Attorneys’ Fees and Costs; Relief from

* Judgment; Vaccine Rule 36; RCFC 60(b);

SECRETARY OF HEALTH * Check Payable Directly to Counsel;

AND HUMAN SERVICES, * Vaccine Act Section 15(e).

*

Respondent. *

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

Richard Moeller, Esq., Moore, Heffernan, et al., Sioux City, IA, for petitioner.

Voris Johnson, Esq., U.S. Department of Justice, Washington, DC, for respondent.

DECISION GRANTING RELIEF FROM JUDGMENT1

Roth, Special Master:

On July 14, 2016, P.S. (“petitioner”) filed a petition for compensation pursuant to the

National Vaccine Injury Compensation Program,2 alleging that he developed undifferentiated

connective tissue disease (“UCTD”), autoimmune or atrophic gastritis, and other injuries which

were either caused or significantly aggravated by hepatitis B vaccinations he received on August

14, 2013, December 17, 2013, and May 16, 2014. See Petition (“Pet.”), ECF No. 1. A Ruling on

the Record and Decision Dismissing the Petition was issued on May 15, 2020. Dismissal Decision,

ECF No. 69. The undersigned found that petitioner failed to carry his burden of showing that the

hepatitis B vaccines he received caused and/or significantly aggravated his UCTD, autoimmune

or atrophic gastritis, or any other injuries. Id. Shortly, thereafter, a Motion to redact petitioner’s

name was filed and granted, and the decision was reissued using petitioner’s initials. ECF Nos. 71,

74.

1

This Ruling has been formally designated “to be published,” which means it will be posted on the Court of Federal

Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913

(codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Ruling will be available to anyone with

access to the internet. However, the parties may object to the Ruling’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 Ruling will be available to the

public. Id.

2

National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation,

all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

On September 1, 2020, petitioner filed a Motion for Attorneys’ Fees and Costs. ECF No.

76. Respondent opposed petitioner’s Motion, arguing that petitioner lacked a reasonable basis in

the filing of the petition, never established reasonable basis, and was therefore not entitled to

reimbursement for fees and costs.3 ECF No. 78. A Decision on Attorneys’ Fees and Costs issued

on October 6, 2022, finding that reasonable basis existed during the pendency of the matter and

awarding attorneys’ fees and costs. Decision on Attorneys’ Fees & Costs, ECF No. 81. The parties

filed a joint notice not to seek review on October 12, 2022, and judgment entered accordingly,

requiring that attorneys’ fees and costs be paid “in the form of a check jointly payable to petitioner

and petitioner’s counsel of record, Mr. Richard Moeller . . . to be distributed pursuant to the

findings contained in the decision as to Mr. Krakow and petitioner, respectively.” ECF Nos. 82,

83.

On November 29, 2022, Mr. Moeller contacted Chambers via email to advise that in one

place within the attorneys’ fees and costs decision, petitioner’s full name rather than his initials

was inadvertently used. The decision was immediately removed, corrected, and refiled.

On December 6, 2022, petitioner’s counsel, Mr. Moeller, filed a Motion for Relief from

and/or Enforcement of Judgment, advising that petitioner refused to endorse the attorneys’ fees

and cost check because Mr. Moeller did not immediately catch the Court’s mistaken use of

petitioner’s name in the decision, which was “unacceptable.” ECF No. 85. Mr. Moeller requested

that the Court “enter an order, decision, and/or judgment that will allow him to enforce the

judgment and/or provide him with relief from judgment to carry out the distribution of fees and

costs required by the decision.” Id. Further, Mr. Moeller represents that P.S. “requested that any

fees and costs payable to [Mr. Moeller] not require his endorsement.” Id. at 2. Mr. Moeller also

filed a concurrent Motion to Withdraw as Counsel. ECF No. 86.

A status conference was held on the same date, and it was ordered that each counsel submit

a memorandum of law on their respective positions. ECF No. 87. Mr. Moeller filed his

memorandum on December 9, 2022, and respondent filed his on January 9, 2023. ECF Nos. 88,

89.

I. Arguments of Petitioner’s Counsel and Respondent

A. Mr. Moeller’s Memorandum

Petitioner’s counsel relied on both the plain language of the Vaccine Act and case law to

support his position that a special master has the authority to grant the relief under Vaccine Rule

36 and the Rules of the Court of Federal Claims (“RCFC”) 60(b) and order that the check for

payment of fees and costs be made solely to petitioner’s counsel. Petitioner’s Counsel’s

Memorandum (“Pet. Memo”) at 1. 4

3

The Decision on Attorneys’ Fees and Costs was held until the issuance of decisions from the Federal Circuit

regarding the reasonable basis standard in Cottingham ex. rel. K.C. v. Sec’y of Health and Human Servs., 971 F.3d

1337 (Fed. Cir. 2020) and James-Cornelius v. Sec’y of Health and Human Servs., 984 F.3d 1374 (Fed. Cir. 2021).

4

Petitioner’s counsel notes that in the Motion for Attorneys’ fees and Costs filed on September 1, 2020, he requested

that payment be made to petitioner’s counsel, but concedes that the request could have been made more clearly. Pet.

Memo at 1; Motion for Fees at 17-18, ECF No. 76.

2

Petitioner’s counsel argues that respondent is only “half right” that all awards of attorneys’

fees are part of the compensation awarded to petitioner under § 300aa-115 and any judgment for

payment must include petitioner as a payee on the check. Pet. Memo at 2-3.

Petitioner’s counsel submits that in any case, an award of attorney’s fees begins with §

300aa-15 of the Vaccine Act. He provides the relevant portions of § 300aa15(a) and (e) as follows:

(a) General rule

Compensation awarded under the Program to a petitioner under section 300aa-11 of this

title for a vaccine-related injury or death associated with the administration of a vaccine

after October 1, 1988, shall include the following:

[omitted]

***

(e) Attorneys’ fees

(1) 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. If the judgment of the United States

Court of Federal Claims on such a petition does not award compensation, the

special master or court may award an amount of compensation to cover petitioner’s

reasonable attorneys’ fees and other costs incurred in any proceeding on such

petition if the special master or court determines that the petition was brought in

good faith and there was a reasonable basis for the claim for which the petition was

brought.

Pet. Memo at 2; § 300aa15(a) and (e).

Petitioner’s counsel argues that while § 15(a) provides for compensation and attorneys’

fees and costs to be awarded to the petitioner when petitioner has sustained a vaccine-related injury

under § 300aa-11, § 15(e) contains two separate clauses. Pet. Memo at 2-3. The first clause of §

15(e) provides for attorneys’ fees and costs to be awarded as part of the compensation when

entitlement is found in favor of the petitioner. However, the second clause of § 15(e) applies when

entitlement is not found, and no compensation is awarded. In that event, the special master is

required to determine if the petition was brought in good faith and with a reasonable basis. Id. This

second clause does not contain language that makes an award of attorneys’ fees and costs part of

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§ 300aa-11 provides the requirements for petitioners for compensation under the Vaccine Act.

3

petitioner’s compensation and does not direct that attorneys’ fees and costs be paid “to the

petitioner” when awarded. Id. at 3

In support of his interpretation of § 15(e), petitioner’s counsel relies on Goodridge v. Sec’y

of Health & Human Servs., No. 02-320V, 2014 WL 3973905 (Fed. Cl. May 20, 2014). In Goodridge,

Special Master Hastings ordered that a check be made payable directly to counsel, concluding that

in pre-Act cases, attorneys’ fees and costs were included as part of compensation under § 300aa11

to petitioner, but the same language does not appear in § 15(e), which applies to post-Act cases.

Pet. Memo at 4. Special Master Hastings explained that the policy considerations underlying the

scheme for awarding of attorneys’ fees and costs was to give petitioners the ability to obtain

qualified assistance from counsel, citing to the Supreme Court’s decision in Sebelius v. Cloer. Id.

However, Special Master Hastings also recognized the potential that an attorney would be unable

to receive compensation for work performed if an unsuccessful petitioner could not be located or

was uncooperative, which “would contradict the stated intentions of the drafters of the Vaccine

Act.” Id. at 4-5. Similar conclusions were deemed appropriate for statutory and policy reasons,

with payment ordered to be issued solely to the attorney in other cases where compensation was

not awarded. See Turner v. Sec'y of Health & Human Servs., No. 02-1437V, 2014 WL 1493119

(Fed. Cl. Spec. Mstr. Mar. 26, 2014); Tutza v. Sec'y of Health & Human Servs., No. 04-0223V,

2012 WL 2362594 (Fed. Cl. Spec. Mstr. Apr. 20, 2012); and Gitesatani v. Sec'y of Health &

Human Servs., No. 09-799V, 2011 WL 5025006 (Fed. Cl. Spec. Mstr. Sept. 30, 2011). Pet. Memo

at 6.

Petitioner’s counsel further relied on now-Chief Special Master Corcoran’s decision in

Watson v. Sec'y of Health & Human Servs., No. 10-882V, 2016 WL 4491492 (Fed. Cl. Spec. Mstr.

July 25, 2016). In Watson, the Chief Special Master found that extraordinary circumstances existed

for revising the judgment even though petitioner was entitled to compensation making the first

clause of § 300aa15(e) applicable. However, petitioner’s counsel did not request that payment be

made to him alone in his original filing, and the Chief Special Master “implied that ruling in favor

of the attorney’s motion would have been an easier decision if his original motion would have

requested the payment be made just to him.” Pet. Memo at 5-6; Watson, No. 10-882V, 2016 WL

4491492 at *3. Here, Mr. Moeller highlighted that he did request the fees check be made payable

to counsel in his original Motion, though he admittedly could have made the request more clearly.

See Motion for Fees at 17-18, ECF No. 76; Pet. Memo at 1.

Further, petitioner’s counsel distinguished the instant matter from Ortiz-Mutilitis, in which

Special Master Vowell denied petitioner’s counsel’s Rule 60(b) Motion despite counsel’s inability

to communicate with or locate the petitioner. Special Master Vowell concluded that under the facts

of that case, counsel failed to demonstrate “extraordinary circumstances” and though “distasteful,”

had the option of suing his client in state court. Pet. Memo at 6; Ortiz-Mutilitis v. Sec'y of Health

& Human Servs., No. 03-0059V, 2012 WL 3902472 at *4 (Fed. Cl. Spec. Mstr. Aug. 14, 2012).

Petitioner concluded that “avoiding a lawsuit against a client, especially when far less

extreme options are available, is an exceptional circumstance, not merely distasteful.” Pet. Memo

at 7.

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B. Respondent’s Memorandum

Respondent questions whether petitioner’s counsel has standing to bring the present

motion, submitting that it is “unclear from the Motion whether petitioner himself consents to the

relief Mr. Moeller seeks.”6 Respondent’s Memorandum (“Resp. Memo”) at 1.

Respondent submits that “’[a] motion for relief from judgment [pursuant to Rule 60(b)] is

one for extraordinary relief entrusted to the discretion of the court’”, and that “only extraordinary

circumstances justif[y] the reopening of a final judgment”. Resp. Memo at 2 (quoting Matos v.

HHS, 30 Fed. Cl. 223, 225 (1993), and Christeson v. Roper, 574 U.S. 373, 380 (2015)). He further

argues that such relief should be used “sparingly”, when the “substantial rights of the party would

be harmed.” Id. (quoting Kenzora v. HHS, 126 Fed. Cl. 588, 596 (2016)).

Respondent argues that Mr. Moeller “has not offered the kind of exceptional circumstances

that are sufficient for the Court to grant the relief he seeks.” Resp. Memo at 3. Specifically, the

Guidelines for Practice Under the National Vaccine Injury Compensation Program state that

counsel should be aware that checks for attorneys’ fees and costs will be made payable jointly to

petitioner and petitioner’s counsel. Id.; Guidelines, Section X, Chapter 7. Mr. Moeller “has

represented numerous Vaccine Program petitioners, was almost certainly aware of this fact”, and

could have obtained a power of attorney when he agreed to represent petitioner, which would have

negated the requirement that petitioner endorse the check. Resp. Memo at 3. Mr. Moeller’s failure

to take this action does not rise to an extraordinary circumstance. Id.

Further, Mr. Moeller has not argued that he will be unable to receive compensation for

attorneys’ fees and costs if his motion for relief is denied, because like Ortiz-Mutilitis, there are

legal means available independent of the instant Motion through which Mr. Moeller could enforce

the judgment. Resp. Memo at 4; Ortiz-Mutilitis, No. 03-0059V, 2012 WL 3902472.

According to respondent, Mr. Moeller’s desire to avoid pursuing legal action against

petitioner in another forum is not a sufficient extraordinary circumstance to justify this Court

granting relief from judgment. Resp. Memo at 4. Additionally, it is not the role of this Court to

resolve a contract dispute between petitioner and counsel; petitioner, as a party to his case, has a

clear interest in the attorneys’ fee paid and has “implicitly expressed his opposition to Mr. Moeller

being paid for his work on this case.” Id. Therefore, it would be inappropriate for the Court to

“insert itself” into this dispute and resolve it against petitioner without giving him an opportunity

to state his case. Resp. Memo at 4. Overall, the Vaccine Program was not designed to resolve such

disputes, it is an inappropriate forum in which to resolve this dispute, and the Court should

accordingly deny petitioner’s motion. Id.

II. Analysis

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

relief from judgment pursuant to RCFC 60. Rule 60(b) provides five specific grounds that justify

6

In petitioner’s Motion for Relief From and/or Enforcement of Judgment, Mr. Moeller represented that P.S. “has

requested that any fees and costs payable to [Mr. Moeller] do not require his endorsement.” ECF No. 85 at 2.

Therefore, this argument is moot.

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relief from judgment, and a catch-all provision that allows a party to obtain relief based upon “any

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

petitioners moving under RCFC 60(b) to establish “extraordinary circumstances.”7 Ortiz-Mutilitis,

No. 03-0059V, 2012 WL 3902472, at *2 (citing Ackerman v. United States, 340 U.S. 193, 198

(1950)).

The parties disagree about what constitutes a sufficient basis for relief from the underlying

judgment when an attorney is unable to obtain a petitioner’s signature on a fees award check.

However, the case law is instructive. In Watson, a case in which compensation was awarded, the

Chief Special Master found that extraordinary circumstances for revising the judgment existed

where counsel was unable to contact or locate the petitioner to endorse the fees check despite

phone calls and visits to petitioner’s home and because counsel promptly notified the Court of his

difficulties. Watson, No. 10-882V, 2016 WL 4491492. The Chief Special Master distinguished the

facts in Watson from those in Ortiz-Mutilitis, in which Special Master Vowell denied petitioner’s

Motion for Relief from Judgment where the petitioner was uncooperative in endorsing the fees

check because petitioner’s counsel could remedy the dispute with his client in a state court action.

Additionally, counsel failed to move for relief until nearly a year after entry of judgment. Ortiz-

Mutilitis, No. 03-0059V, 2012 WL 3902472. Focusing on the timing of the request for relief, the

Chief Special Master concluded in Watson that the holding in Ortiz-Mutilitis would be “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.” This is in

keeping with Rule 60(b)(6), which requires a motion seeking relief from judgment to be made

within a reasonable time of the original judgment. Id. at *2-*3.

Further, in Watson, the Chief Special Master noted that requesting that the fees check be

made payable directly to counsel before issuance of the fee decision is a potential remedy to avoid

a situation like the instant one. Watson, No. 10-882V, 2016 WL 4491492 at *3; see also

Goodridge, No. 02-320V, 2014 WL 3973905 at *5 (where counsel requested direct payment in

the Motion for Attorneys’ Fees and Costs because petitioner could not be found). Despite her

decision in Ortiz-Mutilitis, Special Master Vowell pointed out that in narrow circumstances, “a

special master may award attorney fees and costs directly to counsel, who is the real party in

interest in all fees application.” Ortiz-Mutilitis, No. 03-0059V, 2012 WL 3902472, at n.9 (citing

Tutza, No. 04-0223V, 2012 WL 2362594). This is particularly relevant in the instant matter, as the

Decision on Attorneys’ Fees and Costs not only includes payment to Mr. Moeller, but also includes

payment to former counsel, Mr. Krakow, who has waited years to be paid.

I agree with the Chief Special Master’s assessment in Watson. Here, although petitioner’s

counsel is or was able to communicate with petitioner, petitioner has been uncooperative,

disgruntled over the outcome of his case, and refuses to endorse the check for attorneys’ fees and

costs. The petitioner’s name, which was redacted from the Dismissal Decision, was inadvertently

7

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.”).

6

included once in the Decision on Attorneys’ Fees and Costs. Mr. Moeller immediately notified the

Court of the error, and the Decision was promptly withdrawn, corrected, and refiled. See ECF No.

81, 84. Petitioner, however, has used this error as an excuse to refuse to endorse the fees check,

forcing Mr. Moeller to immediately file a Motion for Relief from Judgment. ECF No. 85.

Counsel’s Motion for Relief from Judgment further advises that the petitioner has “requested that

any fees and costs payable to the undersigned not require his endorsement.” ECF No. 85 at 2.

Further, in his memorandum, Mr. Moeller pointed out that in his Motion for Attorneys’ Fees and

Costs, a request that payment of attorneys’ fees and costs be made solely to him was made, though

not made as clearly as it could have been. See Motion for Fees at 17-18, ECF No. 76; Pet. Memo

at 1.

Although this situation rarely occurs, it is a hardship for counsel when it does. Here,

petitioner was represented by two seasoned attorneys who spent many hours and significant funds

diligently pursuing this matter on petitioner’s behalf but were ultimately unsuccessful in proving

his case. When Mr. Moeller became aware of the mistaken use of petitioner’s proper name in one

place in the Decision on Attorneys’ Fees and Costs, he promptly notified the Court so it could be

rectified. A disgruntled client, like an absent one, should not be allowed to control counsels’ ability

to be paid or hold hostage the money that counsel worked for. The Program seeks to encourage

competent attorneys to assist Vaccine Program petitioners, whether successful or not. Mr. Moeller

and Mr. Krakow, two experienced attorneys who are well-known to the Program, did just that. In

the interests of justice, payment of the award of attorneys’ fees and cost should therefore be made

directly to Mr. Moeller for distribution as directed in the Decision on Attorneys’ Fees and Costs.

I therefore find that petitioner’s counsel has demonstrated extraordinary circumstances

sufficient for revising the judgment under Rule 60(b)(6).

III. Conclusion

Based on the foregoing, the original check for attorneys’ fees and costs is void and the

Clerk of Court is hereby instructed to vacate the earlier issued judgment. Petitioner’s counsel is

awarded attorneys’ fees and costs in the amount of $67,559.62 in the form of a check payable

solely to petitioner’s counsel, Richard Moeller, Esq., of Moore, Corbett, Heffernan, Moeller &

Meis, LLP to be distributed in accordance with the findings contained in the Decision for

Attorneys’ Fees and Costs.8

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

Court shall enter judgment in accordance with these terms.

IT IS SO ORDERED.

s/ Mindy Michaels Roth

Mindy Michaels Roth

Special Master

8

The Decision on Attorneys’ Fees and Costs was filed on October 6, 2022. ECF No. 81.

7