In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-0514V
                                        (not to be published)


    JULIA CARSON,
                                                                Chief Special Master Corcoran
                         Petitioner,
    v.                                                          Filed: October 19, 2020


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



Theodore J. Hong, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.

                       DECISION ON ATTORNEY’S FEES AND COSTS1

        On April 12, 2017, Julia Carson filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine
Act”), alleging she suffered a shoulder injury resulting from an influenza vaccine she
received on November 5, 2015. ECF No. 1. On April 7, 2020, I issued a decision awarding
compensation to Petitioner based on the parties’ stipulation. ECF No. 61. A few months
later, on July 10, 2020, I awarded Petitioner $87,920.52 in attorney’s fees and costs. ECF
No. 71.

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   Because this unpublished decision contains a reasoned explanation for the action in this case, I am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.
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 (2012).
       On July 17, 2020, Petitioner filed a motion for post-judgment relief seeking an
additional amount of $3,828.00, representing Petitioner’s portion of the cost of the former
“P-100” pilot program’s neutral evaluator. ECF No. 74. For the reasons stated below, I
hereby grant Petitioner’s motion, amending the prior judgment to award an additional
amount of $3,828.00 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. 48 (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. ECF Nos. 50, 55. The parties later reached a tentative
settlement on January 21, 2020. ECF No. 56. On April 7, 2020, I issued a decision,
awarding compensation based upon the parties’ stipulation. ECF No. 60. Judgment
entered on April 8, 2020. ECF No. 63.

       On May 18, 2020, Petitioner filed a motion for attorney’s fees and costs. ECF No.
67. Petitioner requested a total of $87,920.52, representing $84,463.20 for attorney’s
fees; $3,170.95 in attorney’s costs; and $286.37 for Petitioner’s out-of-pocket expenses.
On July 10, 2020, I awarded the full amount requested. ECF No. 71. Judgment entered
on July 14, 2020. ECF No. 73. 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 July 17, 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. 74. Petitioner’s motion acknowledged that in seeking a fees award in
this case, she did not include Petitioner’s portion of the neutral evaluator’s fees due to “an
unintentional omission on the part of Petitioner.”

Petitioner indicates that
Respondent’s counsel stated on July 16, 2020, “that Respondent does not take a position
in this Motion.”

              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

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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).3

         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)
but does not specify the exact subsection she believes is applicable to her case. Motion
at 1. She indicates, however, that a mistake is, in essence, the rationale for this motion.

Thus, I find that RCFC 60(b)(1) is 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,
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.




3
  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
      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 32, filed July 17, 2020, ECF
No. 75. The invoice shows Ms. Jones performed 16.5 hours of work and charged an
hourly rate of $464.00. The total of $7,656.00 is divided between the parties. Petitioner’s
portion, 50 percent of the total, is listed as $3,828.00.

       I have reviewed all billing entries and find the requested amount to be reasonable.
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 $3,828.00 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 $3,828.00 in the form of a check made payable jointly to Petitioner and
Petitioner’s counsel.

      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.4

IT IS SO ORDERED.

                                                      s/Brian H. Corcoran
                                                      Brian H. Corcoran
                                                      Chief Special Master



4
  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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