Gross v. Secretary of Health and Human Services

CORRECTED In the United States Court of Federal Claims No. 24-2051C (Filed: June 26, 2025) ) CULMEN INTERNATIONAL, LLC, ) ) Plaintiff, ) v. ) ) THE UNITED STATES, ) ) Defendant, ) and ) ) AMENTUM SERVICES, INC., ) ) Defendant-Intervenor. ) ) ORDER On May 19, 2025, Plaintiff, Culmen International, LLC (“Culmen”), voluntarily dismissed its case without prejudice pursuant to Rule 41(a)(1)(A)(i), ECF No. 43, effectively agreeing to the government’s proposed corrective action, ECF No. 42. Nearly a month later, on June 12, 2025, Culmen filed a motion, ECF No. 44, for relief from the standard protective order (“PO”), ECF No. 9, which this Court issued at Culmen’s request, ECF No. 7. Culmen’s pending motion seeks an extension of the PO’s record destruction deadline — until sixty days following the conclusion of the government’s corrective action. ECF No. 44. On June 23, 2025, the government filed its timely opposition to Culmen’s motion. ECF No. 46. On balance, this Court agrees with the government, at least in this case: There is nothing unique about Culmen’s circumstance; this case is one of many protests in which the procuring agency decided to take corrective action. If the Court were to grant Culmen’s motion, every protestor under such circumstances might seek the same relief, thus nullifying the important protections within Paragraphs 2 and 20 of the standard protective order. The Court should not let Culmen overcome  the protective order’s express terms so easily. ECF No. 46 at 6. Culmen posits, in contrast, that “[c]ertain arguments and the factual underpinnings of the same, including those attacking the arbitrary removal (or addition) of technical factor-related strengths and weaknesses, may provide a basis for protest in the future, depending on the results of the Agency’s corrective action.” ECF No. 44 at 3. According to Culmen, “[w]ithout continued access to the administrative record from this case, any future complaint would be unable to state a valid basis of protest with respect to such arguments[.]” Id. But Culmen’s argument does not make sense given the government’s representation about what its correction action would entail. The government represented to this Court (and the parties) that the “agency’s corrective action will include cancellation of the award decision, re-evaluation of the most recent proposals submitted by offerors, establishment of a new competitive range, discussions with offerors within the new competitive range (following minor amendments to the solicitation, if necessary), and ultimately a new award decision.” ECF No. 42. Under these circumstances, the new procurement decision will stand on its own: the new award decision will replace the canceled one, and the new award decision may be challenged, if at all, on the basis of the new procurement record. Cf. Dep’t of Homeland Sec. v. Regents of the Univ. of California, -- U.S. --, 140 S. Ct. 1891, 1908 (2020) (holding that, on remand, “the agency can ‘deal with the problem afresh’ by taking new agency action” (quoting SEC v. Chenery Corp., 332 U.S. 194, 201 (1947))). Accordingly, the Court is doubtful — although we do not prejudge the issue — that the record of the now-cancelled award decision could possibly be relevant to a new procurement decision. In that regard, if Culmen had an objection to the scope of the corrective action, Culmen should not have acquiesced to it so readily. Vanquish Worldwide, LLC v. United States, 163 Fed. Cl. 57, 71-72 (2022) (parties are bound by agreed-upon corrective action). In addition, Culmen voluntarily dismissed its protest without negotiating any relaxation of the PO’s record destruction deadline that Culmen now seeks to modify. The Court sees no reason to grant Culmen’s request at this late date, particularly when the standard PO contemplates the possibility of corrective action by tying the destruction deadline to the “the conclusion of this action.” ECF No. 9 ¶ 20. Culmen obtained the PO it asked for, and cannot now complain about the unfairness of the PO’s terms.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: March 13, 2025 * * * * * * * * * * * * * ANDREW MCRAE, * * Petitioner, * No. 21-196V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Leah v. Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for petitioner. Austin J. Egan, Department of Justice, Washington, D.C., for respondent. DECISION ON STIPULATION1 On January 7, 2021, Andrew McRae (“petitioner”) filed a petition for compensation in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleges that as a result of the measles, mumps and rubella (“MMR”) vaccine on October 19, 2019, he suffered a left shoulder injury. Id. On March 13, 2025, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 54). Respondent denies that petitioner suffered from a left shoulder injury as a result of the MMR vaccine and that the MMR vaccine caused his injury or current condition. Id. at ¶ 6. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa. that a decision should be entered awarding the compensation according to the terms of the stipulation attached hereto as Appendix A. Id. at ¶ 7. The stipulation provides: 1) A lump sum payment of $45,000.00 to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 15(a). I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: April 18, 2025 * * * * * * * * * * * * * LESA MYERS, * * Petitioner, * No. 18-324V * v. * Special Master Gowen * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Lawrence R. Cohan, Saltz Mongeluzzi & Bendesky, Philadelphia, PA, for petitioner. Meghan Murphy, U.S. Department of Justice, Washington, D.C., for respondent. DECISION ON STIPULATION1 On March 1, 2018, Lesa Myers (“petitioner”) filed her claim for compensation in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that as a result of receiving the influenza (“flu”) vaccine on October 27, 2016, she suffered chronic inflammatory demyelinating polyneuropathy (“CIDP”). Id. at Preamble. On April 17, 2025, respondent filed a stipulation providing that a decision should be entered awarding compensation to petitioner. Stipulation (ECF No. 77). Respondent denies that the flu vaccine petitioner caused her to suffer CIDP, any other injury or her current condition. Id. at ¶ 6. Nevertheless, maintaining their respective positions, the parties now agree that the issues between them settled and that a decision should be entered awarding petitioner compensation in accordance with the stipulation attached hereto as Appendix A. Id. at ¶ 7. 1 Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this decision contains a reasoned explanation for the action in this case, I am required to post it to a publicly available website. This decision will appear at https://www.govinfo.gov/app/collection/uscourts/national/cofc or on the Court of Federal Claims website. This means the decision will be available to anyone with access to the Internet. Before the decision is posted on the court’s website, each party has 14 days to file a motion requesting 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). “An objecting party must provide the court with a proposed redacted version of the decision.” Id. If neither party files a motion for redaction within 14 days, the decision will be posted on the court’s website without any changes. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.  The stipulation provides: 1) A lump sum of $83,828.19, which amount represents compensation for the first year life care expenses ($8,828.19) and combined pain and suffering and past unreimbursable expenses ($75,000.00), to be paid through an ACH deposit to petitioner’s counsel’s IOLTA account for prompt disbursement to petitioner; 2) An amount sufficient to purchase the annuity contract described in paragraph 10 of the stipulation, paid to the life insurance company from which the annuity will be purchased. These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). I adopt the parties’ stipulation attached hereto, and award compensation in the amount and on the terms set forth therein. The Clerk of the Court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.3 IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master 3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule 11(a). 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 23-584V MARYA NEMEH, Chief Special Master Corcoran Petitioner, v. Filed: May 6, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessica E. Choper, Britcher Leone and Sergio, LLC, Glen Rock, NJ, for Petitioner. Madylan Yarc, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On April 26, 2023, Marya Nemeh filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleged that she suffered a Table injury – a shoulder injury related to vaccine administration as a result of her July 7, 2020, meningococcal conjugate, meningococcal B, and hepatitis A vaccinations. Petition, ECF No. 1. On December 30, 2024, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 39. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other inf ormation, the disclosure of which would constitute an unwarranted invasion of privacy. If , upon review, I agree that the identified material fits within this definition, I will redact such material f rom public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).  Petitioner has now filed a motion for attorney’s fees and costs, requesting an award of $40,519.25 (representing $39,827.50 in fees plus $691.75 in costs). Application for Attorneys’ Fees and Costs (“Motion”) filed January 22, 2025, ECF No. 44. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred no personal out- of-pocket expenses. ECF No. 44 at 29-30. Respondent reacted to the motion on January 31, 2025, indicating that he is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case but deferring resolution of the amount to be awarded to my discretion. Motion at 2-4, ECF No. 45. Petitioner filed no reply thereafter. I have reviewed the billing records submitted with Petitioner’s request. In my experience, the request appears reasonable, and I find no cause to reduce the requested hours or rates. Furthermore, Petitioner has provided supporting documentation for all claimed costs. ECF No. 44 at 3-17. Respondent offered no specific objection to the rates or amounts sought. I find the requested costs reasonable and hereby award them in full. The Vaccine Act permits an award of reasonable attorney’s fees and costs for successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. Petitioner is awarded attorneys’ fees and costs in the total amount of $40,519.25 (representing $39,827.50 in fees plus $691.75 in costs) to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of Court shall enter judgment in accordance with this decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice renouncing their right to seek review. 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-665V MARIE TYLER, Chief Special Master Corcoran Petitioner, v. Filed: May 13, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jessi Carin Huff, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner. Camille Jordan Webster, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON JOINT STIPULATION 1 On January 12, 2021, Marie Tyler filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). On October 1, 2018, Petitioner received an influenza (“flu”) vaccine, a vaccine contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. § 100.3(a). Petitioner alleges that she sustained a shoulder injury related to vaccine administration (“SIRVA”) as defined in the Table; she further alleges that the flu vaccine caused her alleged shoulder injury, and that she suffered the residual effects of her alleged injury for more than six months. Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injury, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury. 1 Because this Decision contains a reasoned explanation for the action taken in this case, it must be made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018).  Nevertheless, on May 13, 2025, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $30,000.00 to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. Stipulation ¶ 8. This amount represents compensation for all items of damages that would be available under Section 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court is directed to enter judgment in accordance with this decision. 3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2  IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS MARIE TYLER, Petitioner, V. No. 21-665V Chief Special Master Corcoran SECRETARY OF HEALTH AND ECF HUMAN SERVICES, Respondent. STIPULATION The parties hereby stipulate to the following matters: 1. Marie Tyler ("petitioner") filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program , 42 U.S.C. § 300aa-10 to 34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner' s receipt of the influenza ("flu ") vaccine , which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3(a). 2. Petitioner received a flu vaccina