Plotkin v. Sec'y of Health & Human Servs.

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JOSEPHINE PLOTKIN, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

No. 16-1249V

United States Court of Federal Claims

May 29, 2020

Not To Be Published

Reissued: September 1, 2022

Attorneys' fees and costs, deceased petitioner without estate

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]

CHRISTIAN J. MORAN SPECIAL MASTER.

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.

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.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

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 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...