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McCulloch v. Secretary of Health and Human Services

United States Court of Appeals, Federal Circuit

May 3, 2019

RACHEL MCCULLOCH, AS PARENT AND LEGAL GUARDIAN OF A.M., Petitioner-Appellee
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellant

          Appeal 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.

          Daniel 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. Reeves.

          Before Lourie, O'Malley, and Taranto, Circuit Judges.

          Taranto, Circuit Judge.

         Rachel 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 Federal Claims.

         In June 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).

         In this 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.

         I

         A.M. 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.

         The 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.

         On June 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.

         The 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 expenses." Id.

         The government timely appealed. We have jurisdiction under 42 U.S.C. § ...


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