Lent v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-675V ************************* * GENA BINKLEY KOTCH, * Chief Special Master Corcoran * Petitioner, * Filed: May 20, 2025 * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * ************************* Robert J. Krakow, Law Office of Robert J. Krakow, P.C., New York, NY, for Petitioner. Sarah B. Rifkin, U.S. Department of Justice, Washington, DC, for Respondent. DECISION GRANTING IN PART FINAL AWARD OF ATTORNEY’S FEES AND COSTS 1 On May 7, 2019, Gena Binkley Kotch filed a petition seeking compensation under the National Vaccine Injury Compensation Program (the “Vaccine Program”). 2 Petitioner alleged that she suffered Guillain-Barré syndrome or peripheral neuropathy as a result of an influenza vaccine she received on January 27, 2018. Petition (ECF No. 1) at 1. The matter was originally set for a two-day Entitlement Hearing to take place on December 9, 2024, but the parties were able to successfully settle the case before then, and I issued a decision awarding Petitioner compensation. See Decision, dated Feb. 27, 2025 (ECF No. 112). 1 "Under Vaccine Rule 18(b), each party has fourteen (14) 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 Decision will be available to the public in its present form. Id." 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).  Petitioner previously filed a motion for interim attorney’s fees and costs, but has since filed this present motion, and requests that it be combined with the pending fees request. See Motion, dated Dec. 19, 2023 (ECF No. 75) (“Interim Fees Mot.”); Motion, dated Apr. 12, 2025 (ECF No. 117) (“Final Fees Mot.”). In total, Petitioner requests $333,966.44 in attorney’s fees and costs (reflecting $280,092.31 in fees, plus $53,874.13 in costs) for the work of attorneys and staff at the Law Office of Robert J. Krakow, P.C. Final Fees Mot. at 13, 42. Respondent reacted to the present fees request on April 28, 2025. See Response, dated Apr. 28, 2025 (ECF No. 128). Respondent agrees that Petitioner has satisfied the statutory requirements for a fees award, and otherwise defers the calculation of the amount to be awarded to my discretion. Resp. at 2, 5. Petitioner filed a reply, maintaining her position and requesting that she be awarded the requested fees and costs as indicated. Reply, dated May 2, 2025 (ECF No. 122). For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion, awarding fees and costs in the total amount of $332,960.24. I. Calculation of Fees Because Petitioner’s claim was successful, she is entitled to a fees and costs award— although only “reasonable” fees or costs may be awarded in the Program. Determining the appropriate amount of the fees award is a two-part process. The first part involves application of the lodestar method—“multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensely v. Eckerhart, 461 U.S. 424, 429–37 (1983). An attorney’s reasonable hourly rate is determined by the “forum rule,” which bass the proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there is a substantial difference in rates (the so-called “Davis” exception”). Avera, 515 F.3d at 1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)

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

Slip Op. No. 25-75 UNITED STATES COURT OF INTERNATIONAL TRADE COZY COMFORT COMPANY, LLC, Plaintiff, Before: Stephen Alexander Vaden, Judge v. Court No. 1:22-cv-00173 (SAV) UNITED STATES, Defendant. FINDINGS OF FACT & CONCLUSIONS OF LAW [Resolving disputed facts about the subject merchandise, called The Comfy®, and concluding that The Comfy® is a pullover classifiable under Heading 6110 and Subheading 6110.30.30] Dated: June 16, 2025 Christopher J. Duncan and Elon A. Pollack of Stein Shostak Shostak Pollack & O’Hara, of Los Angeles, CA, for Plaintiff Cozy Comfort Company, LLC. With them on the brief were Gregory P. Sitrick, Isaac S. Crum, and Sharif S. Ahmed of Messner Reeves LLP, of Phoenix, AZ, and Robert H. Dunikoski II of Castenda and Heidelman LLP, of Dallas, TX. Brandon A. Kennedy, Trial Attorney, and Beverly A. Farrell, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant United States. With them on the brief were Justin R. Miller, Attorney-In-Charge, Patricia M. McCarthy, Director, and Brian M. Boynton, Principal Deputy Assistant Attorney General, and Michael A. Anderson, General Attorney, Office of the Assistant Chief Counsel, U.S. Customs and Border Protection. Vaden, Judge: Cozy Comfort Company, LLC (Cozy Comfort) created a novel product called The Comfy®, which combines the features of an ordinary throw Court No. 1:22-cv-00173 (SAV) Page 2 blanket with those of an oversized pullover. The Comfy® is made abroad so that it must be imported into the United States before it is sold to American consumers. Importing The Comfy® presented Cozy Comfort and the United States Government with a problem. All goods entering the United States must be classified according to the Harmonized Tariff Schedule of the United States (HTSUS) before import duties can be assessed. The HTSUS is not updated to account for every novel product on the market; it speaks in more general terms about broader categories of products. Importing The Comfy® thus demanded an answer to a classification question: Is The Comfy® a blanket, a pullover, or something else? Cozy Comfort brought this lawsuit because it believes U.S. Customs and Border Protection (Customs) answered that question incorrectly. Customs classified The Comfy® under Subheading 6110.30.30, HTSUS, which covers sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles. Cozy Comfort contends The Comfy® should be classified under a tariff heading for blankets instead, or in the alternative, under one of two other tariff headings. The Court conducted a five-day bench trial to resolve lingering factual disputes about The Comfy®. Based on the following findings of fact, the Court concludes that the Government is correct. The Comfy® is a pullover classifiable under 6110.30.30, HTSUS. BACKGROUND I. Procedural History Cozy Comfort first imported The Comfy® in January 2018. See Trial Tr. vol. I at 72:17–20, ECF No. 108 (direct testimony of Mr. Speciale). The company listed the Court No. 1:22-cv-00173 (SAV) Page 3 product as a blanket under Subheading 6301.40.00, HTSUS, on its customs forms and paid the associated duties. See Pre-Trial Order, Schedule C ¶ 32 (Jt. Uncontested Facts), ECF No. 107. On March 9, 2020, however, Customs reclassified The Comfy® as a pullover under Subheading 6110.30.30, HTSUS. See id. Cozy Comfort responded by filing its first protest with Customs on August 26, 2020. See id. ¶ 33. Customs issued Ruling H313594 on May 21, 2021, to resolve the protest. See id. ¶ 35. That ruling continued to find The Comfy® should be classified as a pullover under Subheading 6110.30.30, HTSUS. See id. While Customs reviewed Cozy Comfort’s first protest, Cozy Comfort imported a new shipment of The Comfy® under Entry No. 442-9233932-0 on January 6, 2021. See id. ¶ 34. Cozy Comfort classified the products in that entry as pullovers under Subheading 6110.30.30, HTSUS, as Customs directed. See id. This January 2021 shipment is the shipment at issue in this case. See id. ¶¶ 34–35. On May 20, 2022, Cozy Comfort timely filed another protest contesting Custom’s liquidation of the January 2021 shipment at the higher tariff rate for pullovers. See id. ¶ 38. Customs denied that protest on May 31, 2022. See Compl. ¶ 24, ECF No. 6. Cozy Comfort filed the present lawsuit challenging both the May 31, 2022 protest denial and the underlying Customs Ruling supporting it.1 See id. ¶¶ 22

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 NOT FOR PUBLICATION ______________________________________ ) DEE MONBO, ) ) Plaintiff, ) No. 24-cv-2139 ) v. ) Filed: June 16, 2025 ) THE UNITED STATES, ) ) Defendant. ) ______________________________________ ) MEMORANDUM OPINION AND ORDER This action concerns Plaintiff Dee Monbo’s challenge to the Federal Aviation Administration’s (“FAA”) decision to cancel a procurement solicitation. Ms. Monbo alleges that she submitted a joint proposal with Monbo Group International (“MGI”) in response to the solicitation, and that the FAA’s cancellation was both improper and prejudicial. Before the Court is the Government’s Motion to Dismiss pursuant to Rules 12(b)(1), 12(b)(6), and 41(b) of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons set forth below, the Court GRANTS the Government’s Motion. I. BACKGROUND On December 27, 2024, Ms. Monbo, who is proceeding pro se, filed this bid protest. See Pl.’s Compl., ECF No. 1. On January 15, 2025, Ms. Monbo filed an Amended Complaint. See ECF No. 8. In the Amended Complaint, Ms. Monbo describes herself as a “Federal Contractor” who “is an offeror of Project Manager services.” Id. ¶ 4. She alleges that in “late 2023” the FAA issued Request for Proposal 6973GH-23-R-00147 (“Solicitation”) related to a proposed contract for financial services. Id. ¶ 16. She asserts that her “joint proposal with Monbo Group International . . . [was] the lowest priced proposal (i.e the winning bid),” id. ¶ 18, but the joint proposal did not result in an award because “the Agency improperly canceled the solicitation,” id. ¶ 19. Ms. Monbo alleges that the FAA’s cancelling the Solicitation violated Federal Acquisition Regulation (“FAR”) 14.404-1(a)(1)’s compelling-reason requirement, and further that this “regulatory violation . . . prejudiced Plaintiff and MGI,” who would have won the contract but for the improper cancellation. Id. ¶ 21. She further contends that she “had a substantial chance of being acquired [by MGI] to meet the needs of the Agency had the violation not occurred.” Id. at 6 (“Grounds for Protest” ¶ 11) (alteration in original). Ms. Monbo lists eleven grounds for protest, including that the FAA’s cancellation of the Solicitation “violated the compelling-reason requirement,” “violates FAR 15.206,” “is improper,” “was unreasonable,” “was arbitrary and capricious,” “lacks a rational basis,” “is pretextual,” is “conclusory and insufficiently documented,” and “is contrary to law.” Id. at 5–6. She requests injunctive relief in the form of an order “SETTING ASIDE as invalid the Agency’s cancellation of all bids” for the solicitation in question, as well as reasonable fees and expenses. Id. at 7. The Court held an initial status conference on January 30, 2025. On January 31, 2025, Ms. Monbo filed a Motion to Introduce Evidence of COFC Jurisdiction. See ECF No. 11. In her motion, Ms. Monbo argues that the Court has jurisdiction over her protest because the FAA’s Office of Dispute Resolution for Acquisition (“ODRA”) does not have jurisdiction. She also describes herself as “a proposed subcontractor of MGI,” id. at 2, which is a different characterization than what she alleges in her Amended Complaint, wherein she purports to be a contractor who is jointly collaborating with MGI, see ECF No. 8 ¶¶ 4–10. The Government moved to dismiss the Amended Complaint on February 7, 2025, arguing that (1) the Court does not have jurisdiction to hear Ms. Monbo’s protest because protests of FAA 2 procurements must be brought before ODRA; (2) Ms. Monbo has no standing to sue because she did not submit a proposal in response to the Solicitation (only MGI did); and (3) Ms. Monbo cannot represent MGI as the real party in interest because she is not an attorney and is bringing this protest pro se. See Mot. to Dismiss, ECF No. 12. On April 8, 2025, Ms. Monbo filed her Response to the Government’s Motion to Dismiss. See ECF No. 16. Ms. Monbo’s principal response is that the Court’s jurisdiction over her claim has already been determined in a separate suit that she filed in the United States District Court for the District of Columbia (“District Court case”). Ms. Monbo requests that if the Court “chooses not to decide the controversy,” the Court transfer her case to the United States District Court for the District of Columbia. Id. at 4. The Government did not f