In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-1632V
                                        (not to be published)


    CHERYL GIBBS,
                                                                Chief Special Master Corcoran
                         Petitioner,
    v.                                                          Filed: November 4, 2020


    SECRETARY OF HEALTH AND                                     Special Processing Unit (SPU);
    HUMAN SERVICES,                                             Attorney’s Fees and Costs; Neutral
                                                                Evaluator Costs; Post Judgment
                         Respondent.                            Relief



Shealene Priscilla Wasserman, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.


                       DECISION ON ATTORNEY’S FEES AND COSTS1

       On October 30, 2017, Cheryl Gibbs filed a petition seeking compensation under
the National Vaccine Injury Compensation Program (“Vaccine Program”). Petitioner
alleges that she suffered from a left shoulder injury as a result of her March 24, 2016,
receipt of the tetanus, diphtheria, acellular pertussis vaccine. On May 26, 2020, I issued
a decision awarding compensation to Petitioner based on the parties’ stipulation. ECF
No. 43. A few months later, on September 4, 2020, I awarded Petitioner $ 16,025.93 in
attorney’s fees and costs. ECF No. 50.



1
   Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (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.
       On October 20, 2020, Petitioner filed a motion for post-judgment relief seeking an
additional amount of $4,018.41, representing Petitioner’s portion of the cost of the former
“P-100” pilot program’s neutral evaluator. ECF No. 57. For the reasons stated below, I
hereby grant Petitioner’s motion, amending the prior judgment to award an additional
amount of $4,018.41 in attorney costs.


      I.     Relevant Procedural History

        On September 23, 2019, the case was selected for alternative dispute resolution
(“ADR”) as part of the discontinued P-100 program. ECF No. 31 (P-100 Initial Order).
Under the P-100 program, the parties agreed to pay one-half each of the costs associated
with the services of a neutral evaluator. LeeAnn Jones was assigned as the neutral
evaluator in this case, and the neutral evaluation was held on December 4, 2019 at her
office in Atlanta, Georgia. Informal Remark, dated Sept. 24, 2020; ECF Nos. 33, 36. The
parties later reached a tentative settlement on February 10, 2020. ECF No. 39. On May
26, 2020, I issued a decision, awarding compensation based upon the parties’ stipulation.
ECF No. 43. Judgment entered on June 30, 2020. ECF No. 45.

       On July 27, 2020, Petitioner filed a motion for attorney’s fees and costs. ECF No.
48. Petitioner requested a total of $16,025.93, representing $ 13,587.60 for attorney’s
fees and $ 2,438.33 in attorney’s costs. On September 4, 2020, I awarded the full amount
requested. ECF No. 50. Judgment entered on September 14, 2020. ECF No. 52. But the
sum requested failed to seek costs associated with the work Ms. Jones had performed.


      II.    Petitioner’s Motion for Post-Judgment Relief

        On October 20, 2020, Petitioner file a motion for post-judgment relief pursuant to
Vaccine Rule 36 and Rule 60(b) of the Rules of the United State Court of Federal Claims
(“RCFC”). ECF No. 57. Petitioner’s motion acknowledged that “Petitioner’s counsel
mistakenly did not include mediator to the parties, LeeAnn Jones’ invoice with her original
motion for attorney’s fees due to miscommunication with the mediator.”

She seeks
relief under RCFC 60(b)(1).

      On November 3, 2020, Respondent filed his response, deferring to my discretion
regarding the appropriateness of the additional costs and reasonableness of the amount
requested. ECF No. 59. By email communication on October 19, 2020, Petitioner’s
counsel indicated Petitioner did not wish to file a reply. See Informal Remark, dated Oct.
21, 2020.

                                            2
                A.      Legal Standard

        Vaccine Rule 36(a) allows a party to obtain relief from judgment in two ways: either
by filing a motion for reconsideration pursuant to RCFC 59, or by seeking relief from
judgment pursuant to RCFC 60. If the case was assigned to a judge for review, the motion
will be referred to the same judge. Vaccine Rule 36(a)(1). Otherwise, the motion will be
referred to the special master assigned to the case. Vaccine Rule 36(a)(2).2

         In determining whether a judgment should be set aside or altered, “the need for
finality of judgments” must be balanced against “the importance of ensuring that litigants
have a full and fair opportunity to litigate.” Kennedy v. Sec’y of Health & Hum. Servs., 

, 539 (2011) (citing United Student Aid Funds, Inc. v. Espinosa, 

, 276 (2010); see also Bridgham by Libby v. Sec’y of Health & Hum. Servs., 

. 101, 104 (1995) (discussing the “tension between the goals of ensuring that the court’s
judgment appropriately reflects the adjudication of the parties’ rights and of providing the
parties with certainty as to those rights”).

        Pursuant to RCFC 60(a), a court may correct “[c]lerical mistakes in judgments,
orders, or other parts of the record” at any time. Additionally, a party may request relief
from final judgment for the specific reasons listed in RCFC 60(b)(1)-(5) or the “catch all”
provision at RCFC 60(b)(6). Similar to RCFC 60(a), RCFC 60(b)(1) allows post judgment
relief for “mistake, inadvertence, surprise, or excusable neglect.” I have previously
discussed the differences between RCFC 60(a) and RCFC 60(b)(1) in Williamsen v. Sec’y
of Health & Human Servs., No. 10-0223V, 

(Fed. Cl. Spec. Mstr. Feb.
5, 2014).

                B.      Analysis

      Petitioner indicates she is seeking post-judgment relief pursuant to RCFC 60(b)(1).
Motion at 2. She indicates that a mistake is the rationale for this motion.

I agree
that RCFC 60(b)(1) is the subsection most applicable to Petitioner’s case.

        However, the circumstances in this case are similar to those in Williamsen. 

, at *1. As I previously determined in Williamsen, RCFC 60(a) is more
applicable to these circumstances.

This is because the mistake in question is
mostly clerical in nature. Both parties accept that the neutral should be paid, and that the
earlier fees request should reasonably have included the sum as a cost. For that reason,

2
  This sharing of authority over judgments between judge and special master was determined to be
appropriate, since Vaccine Rule 36 allows for immediate review of the special master’s ruling. Vessels v.
Sec’y of Health & Human Servs., 

, 568 (2005).
                                                   3
the error is best viewed not as an outright failure by counsel, but rather as a calculation
mistake that can easily be remedied without much consideration.

      Petitioner’s motion is granted pursuant to RCFC 60(a). I find Petitioner is entitled
to an additional award for Petitioner’s portion of the costs associated with the work
performed by the neutral evaluator, Ms. Jones.


       III.   Appropriate Amount of Fees Awarded

       Along with her motion for post-judgment relief, Petitioner filed an invoice from Ms.
Jones, detailing the hours she expended in this case. Exhibit 9, filed Oct. 22, 2020, ECF
No. 58-2. The invoice shows Ms. Jones performed 16.10 hours of work and charged an
hourly rate of $464.00. The total of $8,036.82 is divided between the parties. Petitioner’s
portion, 50 percent of the total, is listed as $4,018.41.

        I have reviewed all billing entries and find the requested amount to be reasonable.
Consistent with the fact that special masters traditionally have compensated time spent
traveling when no other work was being performed at one-half an attorney’s hourly rate,
Ms. Jones reduced her travel time by 50 percent. See Hocraffer v. Sec’y of Health &
Human Servs., No. 99-533V, 

, at *24 (Fed. Cl. Spec. Mstr. July 25,
2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 

,
at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs.,
No. 01-61V, 

, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). I have
approved the same hourly rate requested by Ms. Jones for other P-100 neutral
evaluators. Smallwood v. Sec’y of Health & Human Servs., No. 18-0291V, 

(Fed. Cl. Spec. Mstr. Aug. 26, 2020); Weaver v. Sec’y of Health & Human
Servs., No. 17-1251V, 

(Fed. Cl. Spec. Mstr. May 29, 2020); Cain v.
Sec’y of Health & Human Servs., No. 18-0364V, 

(Fed. Cl. Spec. Mstr.
Mar. 27, 2020). I find no cause to reduce the requested hours or rate.


       IV.    Conclusion

       Accordingly, Petitioner is awarded an additional $4,018.41 in attorney’s costs to
pay for the work performed by the neutral evaluator, LeeAnn Jones.

       In addition to sums previously awarded, Petitioner is awarded a lump sum
of $4,018.41 in the form of a check made payable jointly to Petitioner and
Petitioner’s counsel.

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      In the absence of a timely-filed motion for review (see Appendix B to the Rules of
the Court), the Clerk 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 filing a joint notice
renouncing their right to seek review.
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