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 No. 24-1854V DANAH MOORE, Chief Special Master Corcoran Petitioner, Filed: May 29, 2025 v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner. Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On November 12, 2024, Danah Moore 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 alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) resulting from an influenza vaccine received on September 18, 2023. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, her left shoulder symptoms have persisted for more than six months, and neither Petitioner, nor any other party, has ever filed any action or accepted compensation in the form of an award or settlement, for Petitioner’s vaccine-related injury. Petition at ¶¶ 4, 28-30. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this Ruling 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 Ruling 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).  On May 28, 2025, Respondent filed his Rule 4(c) report in which he concedes that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, Respondent agrees that Petitioner’s alleged injury is consistent with SIRVA as defined by the Vaccine Injury Table in that “petitioner had no history of pain, inflammation, or dysfunction of her left shoulder prior to vaccination; pain occurred within forty-eight hours after receipt of an intramuscular vaccination; pain and reduced range of motion [were] limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain petitioner’s shoulder pain.” Id. at 5. Respondent further agrees that the records demonstrate that Petitioner suffered the residual effects of her condition for more than six months, and has satisfied all legal prerequisites for compensation under the Vaccine Act. Id. In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 2

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 24-0688V MARK COUNTS, Chief Special Master Corcoran Petitioner, v. Filed: May 28, 2025 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Daniel Alholm, Alholm Law PC, Chicago, IL, for Petitioner. Mary Novakovic, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On April 30, 2024, Mark Counts 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 he suffered a shoulder injury related to vaccine administration following a Tdap vaccination he received on July 17, 2023. Petition, ECF No. 1. On February 28, 2025, I issued a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF No. 24. 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 $20,402.10 (representing $19,286.00 in fees plus $1,116.10 in costs). Application for Fees and Costs (“Motion”) filed February 28, 2025, ECF No. 29. Furthermore, Petitioner filed a signed statement representing that Petitioner incurred no personal out-of-pocket expenses. ECF No. 29-4. Respondent reacted to the motion on March 14, 2025, reporting that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, but deferring resolution of the amount to be awarded to my discretion. Respondent’s Response to Motion at 2-4, ECF No. 32. Petitioner indicated thereafter that he does not intend to file a substantive reply. ECF No. 33. I have reviewed the billing records submitted with Petitioner’s request. The rates requested for work performed through the end of 2024 are reasonable and consistent with prior determinations and will therefore be adopted. Petitioner has also requested the hourly rates of $500.00 for 2025 work performed by his attorney Daniel Alholm, representing a rate increase of $25 from the previous year; the hourly rate of $165.00 for paralegal work performed by Mr. Alholm in the 2022-25 timeframe; and the hourly rate of $170.00 for paralegal work performed by Ms. Grace Cottingham in 2024. I find the proposed rates to be reasonable and hereby adopt them. However, a few of the tasks performed by Attorney Alholm in this matter are more properly billed using a paralegal rate. 3 “Tasks that can be completed by a paralegal or a legal assistant should not be billed at an attorney’s rate.” Riggins v. Sec’y of Health & Hum. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec. Mstr. June 15, 2009). “[T]he rate at which such work is compensated turns not on who ultimately performed the task but instead turns on the nature of the task performed.” Doe/11 v. Sec’y of Health & Hum. Servs., No. XX-XXXXV, 2010 WL 529425, at *9 (Fed. Cl. Spec. Mstr. Jan. 29, 2010). Although these billing entries are reasonable, they must be charged at a reduced rate comparable to that of a paralegal. Application of the foregoing reduces the amount of fees to be awarded by $625.00. 4 3 Entries considered paralegal in nature include drafting and filing basic documents such as an exhibit list, civil cover sheet, certif icate of service, PAR Questionnaire, notice of f iling exhibit list, statement of completion, cover sheet, joint notices not to seek review, and f iling medical records. See billing entries dated: 4/30/24 (two entries); 5/18/24; 5/19/24; 2/28/25 (two entries). Id. ECF No. 29-2. 4 This amount consists of ($475.00 - $165.00 = $310.00 x 1.80 hrs.) + ($500.00

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 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