RACHEL MCCULLOCH, AS PARENT AND LEGAL GUARDIAN OF A.M., Petitioner-Appellee
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant
from the United States Court of Federal Claims in No.
1:09-vv-00293-CFL, Judge Charles F. Lettow.
Christina Ciampolillo, Conway Homer, PC, Boston, MA, argued
for petitioner-appellee. Also represented by Ronald C. Homer.
Anthony Principato, Vaccine/Torts Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellant. Also represented by Joseph H. Hunt,
Alexis B. Babcock, C. Salvatore D'Alessio, Catharine E.
Lourie, O'Malley, and Taranto, Circuit Judges.
Taranto, Circuit Judge.
McCulloch, acting as guardian on behalf of her daughter A.M.,
filed a petition for compensation for vaccine-related
injuries under the National Childhood Vaccine Injury Act of
1986, codified as amended at 42 U.S.C. §§ 300aa-1
to -34. After the special master found that A.M.'s
injuries justified compensation under § 300aa-15(a),
McCulloch v. Sec'y of Health & Human Servs.,
No. 09-293V, 2015 WL 3640610, at *1 (Fed. Cl. May 22, 2015)
(Liability Decision), the parties agreed on the
amounts to be paid, and a decision and judgment on the merits
were entered in accordance with the agreement, McCulloch
v. Sec'y of Health & Human Servs., No. 09-293V,
2016 WL 7655181, at *1 (Fed. Cl. Nov. 28, 2016)
(Compensation Decision); J.A. 41-42 (judgment dated
Dec. 7, 2016). Neither party sought review by the Court of
2017, Ms. McCulloch filed a motion requesting an award of
attorneys' fees and costs under § 300aa-15(e)(1). In
December 2017, the special master awarded fees and costs, and
he included in the award amounts to cover the expenses, under
Florida guardianship law, of maintaining the guardianship for
A.M that had to be maintained as a condition of receiving the
full payments that were part of the merits judgment.
McCulloch v. Sec'y of Health & Human Servs.,
No. 09-293V, 2017 WL 7053992, at *10 (Fed. Cl. Dec. 19, 2017)
(Fees/Costs Decision). When the government appealed
the inclusion of those guardianship-maintenance expenses in
the fees/costs award, the Court of Federal Claims upheld
inclusion of those amounts, but did so under §
300aa-15(a), the provision governing merits awards of
compensation, instead of § 300aa-15(e), the fees/costs
provision on which the special master relied. McCulloch
v. Sec'y of Health & Human Servs., 137 Fed.Cl.
598, 602 (2018) (CFC Decision).
appeal by the government, we agree with the government that
the Court of Federal Claims improperly reopened a final
merits judgment by awarding money under § 300aa-15(a).
We do not decide whether guardianship-maintenance expenses of
the sort at issue here could be awarded under §
300aa-15(a). But we conclude that in this case it was
appropriate for the special master to award the
guardianship-maintenance expenses under § 300aa-15(e)
because Ms. McCulloch incurred a continuing liability to pay
such expenses as a condition of receiving, for her daughter,
the compensation awarded on the merits in this proceeding.
Because the government did not seek modification of the form
of the special master's award, and the Court of Federal
Claims affirmed the special master's award, we affirm the
judgment, though on different grounds from those stated by
the Court of Federal Claims.
received a vaccine for human papillomavirus in August 2007.
Shortly thereafter, she developed autoimmune limbic
encephalitis and an intractable seizure disorder, resulting
in cognitive impairment. Two years later, on May 11, 2009,
Ms. McCulloch filed a petition under the Vaccine Act on
behalf of A.M. On May 22, 2015, the special master found that
Ms. McCulloch was entitled to compensation under the statute
for A.M.'s injury. Liability Decision, at
*1. The parties then agreed on the amounts and
mechanisms of compensation, and the special master accepted
the agreement on November 28, 2016. Compensation
Decision, at *1.
merits award represented "compensation for all damages
that would be available under 42 U.S.C. §
300aa-15(a)." Id. It included several lump-sum
payments for lost earnings, pain and suffering, past
unreimbursable expenses, and satisfaction of a Medicaid lien.
Id. It also included funding for an annuity to
"provide [periodic] payments for the life care items
contained in the life care plan." Id. at *3.
Both the lump-sum and annuity-payout amounts were to be paid
to "the party or parties appointed by a court of
competent jurisdiction to serve as guardian(s)/conservator(s)
of the estate of A.M." Id. The award was
entered pursuant to the government proffer that Ms. McCulloch
accepted, id. at *1, and the proffer recognized that
Ms. McCulloch "has been appointed as the guardian of
A.M.'s estate under the State law of Florida," J.A.
29. On December 7, 2016, the parties filed a notice that they
"d[id] not intend to seek review" of the special
master's finding of entitlement or damages, J.A. 40, and
the Court of Federal Claims entered judgment, J.A. 41-42.
2, 2017, Ms. McCulloch timely moved for attorneys' fees
and costs under 42 U.S.C. § 300aa-15(e)(1). Along with
items not disputed before us, the motion sought to have
included in the fees/costs award the expenses of maintaining
Ms. McCulloch's guardianship of A.M. under Florida law.
It is undisputed before us that Florida law requires
preparation of an annual guardianship plan, Fla. Stat. §
744.367(1); preparation of an annual accounting of the
estate, id. § 744.367(2); an audit fee
associated with preparing the accounting of the estate,
id. § 744.3678(4); and an annual bond premium,
id. § 744.474(8). See Fees/Costs
Decision, at *10 ("[Ms. McCulloch] states that the
local court 'ordered the guardian post a $200, 000
bond' and set the premium on that bond at $860 per
year."). The special master granted Ms. McCulloch's
request, determining that she incurred liability for the
guardianship-maintenance expenses as required by the statute.
Fees/Costs Decision, at *1, *5-8. The special master
gave the government the option either to pay the
guardianship-maintenance expenses as a lump sum or to pay
them by funding an annuity for the term of A.M.'s life.
Id. at *12.
government appealed the fees/costs award to the Court of
Federal Claims, challenging only inclusion of the
guardianship-maintenance expenses, not any other aspect of
the award. The Court of Federal Claims ruled that such
expenses were not properly awardable under the fees/costs
provision of the Vaccine Act, 42 U.S.C. § 300aa-15(e).
CFC Decision, 137 Fed.Cl. at 602. But the court
nevertheless upheld the award of the amounts. It concluded
that Ms. McCulloch was entitled to the
guardianship-maintenance expenses under § 300aa-15(a)
either as expenses for "case management services"
or as "residential and custodial care and service
government timely appealed. We have jurisdiction under 42
U.S.C. § ...