Rothschild 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: 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 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)