[00:00:28] Speaker 04:
Next case is Rachel McCulloch for Assistant Secretary of HHS 2018-2046, Mr. Principato.

[00:00:41] Speaker 00:
Good morning, and may it please the Court, Daniel Principato, appearing for the Secretary of Health and Human Services.

[00:00:46] Speaker 00:
The Court of Federal Acclaims in this case erred in three respects.

[00:00:50] Speaker 00:
First, the Court exceeded its jurisdiction by suicidantly revising a long final judgment on the merits on review of a subsequent motion for attorney's fees.

[00:00:58] Speaker 00:
Second, even if the court had jurisdiction to review the final merits determination, it erred by adopting expansive dictionary definitions of the damages provisions in the Vaccine Act.

[00:01:07] Speaker 00:
And finally, the special master erred by determining that projected future attorney's fees and costs had been incurred.

[00:01:14] Speaker 00:
Turning first to jurisdiction, the Supreme Court has long held that the time to file an appeal is mandatory and jurisdictional.

[00:01:20] Speaker 00:
This court has further held that the time to file a motion for review from the special master's decision is jurisdictional.

[00:01:25] Speaker 00:
It is well settled that an unresolved issue of attorney's fees will not prevent a judgment on the merits from becoming final.

[00:01:32] Speaker 00:
Vaccine Act proceedings, as in this case, are typically resolved in two phases.

[00:01:36] Speaker 00:
First, the special master... Let me ask you this.

[00:01:38] Speaker 05:
Is there any way for these kinds of costs ever to be recoverable?

[00:01:42] Speaker 05:
Or is it your position that absolutely not?

[00:01:45] Speaker 00:
For the future fees and costs of guardian cities are not recoverable under the Act.

[00:01:49] Speaker 05:
There's no... Even if they're put into the damages agreement and negotiated?

[00:01:54] Speaker 00:
uh... well we disagree that these would be compensable as damages uh... and we did we uh... disagree with the court of federal claims decision that uh... they're saying they're not compensable at all.

[00:02:05] Speaker 05:
They're not compensable at all.

[00:02:07] Speaker 00:
Correct.

[00:02:08] Speaker 00:
The costs for maintaining a state court guardianship are not compensable as damages or attorney's fees under the act.

[00:02:13] Speaker 05:
I'm a little confused then, because you do say in the stipulated damage proffer that you understand that this is a state court guardianship that's subject to Florida law, which obviously has all of its component parts, which are these costs.

[00:02:29] Speaker 05:
So why even recite that fact if it can't be recoverable?

[00:02:34] Speaker 00:
The father requires these costs to be incurred, but these are not costs that are required under the Vaccine Act.

[00:02:44] Speaker 00:
Guardianships are not proceedings that are on the petitioner's license.

[00:02:47] Speaker 05:
Well, I'm just a little concerned that it was the government who inserted that language into the proffer, which would seem to imply, at least, I would think, to the petitioner or petitioner's counsel,

[00:03:00] Speaker 05:
that the government understood that there were going to be costs that continued to be incurred and that they were going to be contemplated.

[00:03:06] Speaker 05:
Why put that language in there if you didn't think it was even relevant?

[00:03:10] Speaker 00:
The government understands that the costs are going to be incurred.

[00:03:12] Speaker 00:
It's just a matter of whether these are compensable under the Act.

[00:03:16] Speaker 00:
It's important to remember that guardianships are not something that are unique to the Vaccine

[00:03:23] Speaker 00:
any normal tort plaintiff in Florida that involves a minor are going to impart.

[00:03:27] Speaker 05:
You haven't answered my question.

[00:03:28] Speaker 05:
Why acknowledge the existence of the fees if you knew upfront they were not going to be compensable?

[00:03:35] Speaker 05:
Why not just say, or why not go so far as to say there are these fees, but they can't be recovered?

[00:03:42] Speaker 00:
And we did acknowledge that there were fees for the establishment of the guardianship, but we didn't contest entitlement to those.

[00:03:49] Speaker 00:
So I'm not sure if I'm understanding the question correctly,

[00:03:53] Speaker 02:
I'm sorry, what's the difference between the establishment and the maintenance?

[00:03:57] Speaker 00:
There are a couple of differences.

[00:03:58] Speaker 00:
The Act requires legal representation to bring a petition.

[00:04:04] Speaker 00:
So that's a requirement under the Act.

[00:04:06] Speaker 00:
And the second distinction is that past costs for establishing guardianship are fees that have been incurred.

[00:04:15] Speaker 00:
And that's a requirement under 15E.

[00:04:16] Speaker 03:
So the statute, or not the statute, but now I'm just talking about 15E.

[00:04:23] Speaker 03:
Never mind 15A.

[00:04:24] Speaker 03:
You have, to my mind, a pretty good argument on the jurisdictional point about 15A.

[00:04:29] Speaker 03:
So I'm kind of interested in the special masters ground.

[00:04:33] Speaker 03:
Our decision in black, and you, I think, rely heavily on that and indeed say,

[00:04:40] Speaker 03:
that the key there, the key to what is incurred is whether you have incurred a liability.

[00:04:49] Speaker 03:
Why did Mrs. McCulloch not incur a liability to maintain the status under which her daughter, her charge, her legal, for which she is, for whom she is legally responsible as guardian, would actually get the annuity payments that are part of the judgment?

[00:05:08] Speaker 00:
These are projected future costs.

[00:05:10] Speaker 00:
These aren't costs that are due at any time now.

[00:05:14] Speaker 03:
Let's shift now back from costs.

[00:05:17] Speaker 03:
I'll try to make my point clear.

[00:05:19] Speaker 03:
Liability has to be incurred.

[00:05:22] Speaker 03:
Why did she not incur the liability to maintain the ability for her legal charge to receive the judgment's benefits?

[00:05:33] Speaker 00:
Well, when you think about liability, there's no way anyone can make a claim against her for not paying these at this point.

[00:05:38] Speaker 00:
There's no real liability.

[00:05:39] Speaker 03:
If she just decided, for example, I'm just going to give up the benefits.

[00:05:46] Speaker 03:
I'm not absolutely required to get them.

[00:05:50] Speaker 03:
So even though whatever the large sum of money is, the decade's worth of annuity that my daughter is entitled to under this judgment,

[00:06:03] Speaker 03:
I'm just going to give it up.

[00:06:05] Speaker 03:
You think that she doesn't have potential liability?

[00:06:08] Speaker 00:
That would be a liability that would attach in the future.

[00:06:10] Speaker 00:
She would have to make that decision sometime in the future.

[00:06:12] Speaker 03:
You don't think that she's currently liable for, under her guardianship obligation, to make the payments to carry out her function as guardian to provide her daughter the money that's part of the judgment?

[00:06:28] Speaker 00:
She becomes liable in the future to make those payments and to file all of those requirements under Florida state law.

[00:06:34] Speaker 00:
She's not currently required to do any of those.

[00:06:36] Speaker 00:
She becomes liable as time goes on.

[00:06:40] Speaker 00:
And so 15E is, as the court of federal claims actually found here, the special master's decision carries the vaccine acts taxed too far afield of its plain meaning.

[00:06:52] Speaker 00:
Specifically, the attorney's fees provision in the Act provides that a petitioner may be awarded fees and costs incurred in any proceeding on a Vaccine Act petition.

[00:07:00] Speaker 03:
Does the government have a position about whether expert fees are awardable under 15A?

[00:07:07] Speaker 00:
Yes, expert fees are awardable under 15A.

[00:07:10] Speaker 00:
Those are costs that are incurred on a petition and that are incurred during the proceedings of the petition.

[00:07:15] Speaker 00:
And when an attorney's fees motion is filed, these are passed.

[00:07:18] Speaker 03:
And their costs, notwithstanding the background rule of recently reiterated by the Supreme Court in Remini Street, that costs are limited to 1821 and 1920, which includes a tiny bit of expert fees, but not these.

[00:07:33] Speaker 00:
I'm sorry.

[00:07:33] Speaker 00:
I'm not familiar with the case, but it's the government's position that expert fees in Vaccine Act proceedings are properly fees and costs that are sought under 15E.

[00:07:41] Speaker 00:
And when they are sought, these are costs that have already been incurred.

[00:07:44] Speaker 05:
Right, 15E doesn't equate to litigation costs, right?

[00:07:48] Speaker 05:
It's broader.

[00:07:49] Speaker 00:
It's broader.

[00:07:50] Speaker 00:
It's fees and costs that are incurred for prosecuting a proceeding on a petition.

[00:07:57] Speaker 00:
So it's a little bit broader.

[00:07:59] Speaker 05:
So what if, when the guardianship's established, there is a commitment that says, I will pay x dollars every year

[00:08:06] Speaker 05:
going forward, which you can say is probably an implied commitment.

[00:08:11] Speaker 05:
So assuming it is an actual commitment, how is that not incurred as of that point in time?

[00:08:19] Speaker 00:
If there can't be a claim brought against the petitioner for not paying these, it has to be something that is incurred as something that's incurred in the past.

[00:08:28] Speaker 00:
If there's a commitment to pay something in the future, there's no liability that attaches until you have to pay that fee or that cost.

[00:08:36] Speaker 05:
Well, the difference is the liability and the damages.

[00:08:39] Speaker 05:
So wouldn't the liability attach, even if the damages haven't yet been sought?

[00:08:45] Speaker 00:
There wouldn't be an obligation to pay that until the payment became due.

[00:08:49] Speaker 00:
And this is exactly what the court said in black.

[00:08:51] Speaker 05:
If they didn't make the payments under Florida law, would the guardianship dissolve?

[00:08:56] Speaker 00:
I don't know what exactly would happen, the consequences of failing to pay it.

[00:09:03] Speaker 00:
know if it would dissolve.

[00:09:04] Speaker 00:
I just don't know the answer to that question.

[00:09:06] Speaker 00:
There's no risk that this guardianship is going to happen.

[00:09:08] Speaker 05:
How many states have these kinds of obligations?

[00:09:10] Speaker 00:
We only see a few.

[00:09:11] Speaker 00:
I don't know exactly the number who have them and don't have them.

[00:09:17] Speaker 00:
It's hard to most prove a negative to know which states don't have them.

[00:09:20] Speaker 00:
But we see them in a few cases.

[00:09:21] Speaker 00:
And Florida is the big one.

[00:09:22] Speaker 00:
We saw Florida in this case, Florida and Crespo.

[00:09:25] Speaker 00:
So these kinds of fees are being sought typically in cases that involve Florida, I believe.

[00:09:31] Speaker 00:
Maybe North Carolina or Virginia also have them.

[00:09:35] Speaker 00:
But these are fees and costs that are relatively new that are being brought in vaccine proceedings.

[00:09:42] Speaker 00:
And so the court has decided virtually the same question in black.

[00:09:52] Speaker 00:
That case dealt with the provision of the act that has since been repealed, but that provision, the repealed provision,

[00:09:57] Speaker 00:
required petitioners to have incurred greater than a thousand dollars of expenses before filing a Vaccine Act petition.

[00:10:03] Speaker 00:
And the court rejected an argument that would have allowed petitioners to file petitions based on anticipated future payments.

[00:10:09] Speaker 00:
The court specifically concluded that the term incurred is used in the conventional manner in the Vaccine Act.

[00:10:14] Speaker 03:
Did that involve a situation where it was a legal condition

[00:10:18] Speaker 03:
for receipt of the benefit of the judgment itself.

[00:10:23] Speaker 03:
Here it would be the annuity that you maintain the status as guardian, or else the person on whose behalf you are acting will not, in fact, get the benefit of the judgment.

[00:10:37] Speaker 00:
Now, I don't believe it did, but I don't think that that is a dispositive fact.

[00:10:40] Speaker 03:
That's the essence of, at least to me, the fact to consider the legal relevance of your

[00:10:48] Speaker 00:
I don't think that's a positive fact.

[00:10:50] Speaker 03:
It seems to turn, in your view, on whether the term reliable, which Black used as a translation of incurred, includes a legal obligation for making future premium payments, let's call them, in order to get the benefit of the judgment that is being entered in this case.

[00:11:13] Speaker 03:
That's not a big stretch, is it?

[00:11:16] Speaker 00:
The Congress was aware of guardianships when it created the Act and didn't provide for these kinds of fees and costs to be provided for under 15A.

[00:11:29] Speaker 00:
The fact that a guardianship is necessary to continue to receive a benefit doesn't transform it into an incurred cost.

[00:11:38] Speaker 00:
An incurred cost is a past cost that someone is currently liable for.

[00:11:44] Speaker 00:
And so that's really what Black stands for.

[00:11:54] Speaker 00:
And so in turning to the jurisdictional question, the Vaccine Act, as I mentioned before, the Vaccine Act proceedings have two distinct phases.

[00:12:04] Speaker 00:
First, the special master determines the merits, and then determines the attorney's fees.

[00:12:08] Speaker 00:
Your petition was awarded compensation, and the parties resolved damages.

[00:12:11] Speaker 00:
The secretary filed a proffer on November 28, 2016.

[00:12:14] Speaker 00:
And that day, the special master entered a decision in accordance with the proffer, stating that the damages accounted for all elements of compensation available in the 2015 act.

[00:12:22] Speaker 04:
If we agree with you on jurisdiction,

[00:12:25] Speaker 04:
Is the question of entitlement under either A or E moot?

[00:12:30] Speaker 00:
It would be, yes.

[00:12:31] Speaker 00:
Under 15A, it would be moot if you agree with us under the jurisdictional question.

[00:12:36] Speaker 03:
There was a two-part question.

[00:12:38] Speaker 03:
15A or 15... Not under 15E.

[00:12:41] Speaker 00:
15Es would still be alive.

[00:12:43] Speaker 00:
It would still be a live issue.

[00:12:46] Speaker 00:
And I see my time for rebuttal has... We'll save it for you.

[00:12:57] Speaker 04:
Mrs. Ciampolillo, was that right?

[00:13:00] Speaker 01:
Yes.

[00:13:08] Speaker 01:
May it please the court, Christina Ciampolillo, representing Rachel McCulloch as guardian over AM Petitioner Appelli.

[00:13:16] Speaker 01:
First, I'd like to discuss the special master's award of attorney's fees and costs under Section 15E.

[00:13:22] Speaker 01:
The special master properly awarded these costs

[00:13:25] Speaker 01:
to maintain guardianship because these costs were incurred on a proceeding on the petition.

[00:13:31] Speaker 01:
As you're aware, section 15 of the Vaccine Act allows for compensation to petitioners.

[00:13:36] Speaker 01:
15 allows for compensation as a whole.

[00:13:39] Speaker 01:
15E specifically grants the special master the authority to award attorney's fees, attorney's costs, and other costs.

[00:13:48] Speaker 01:
The list is not exhaustive.

[00:13:50] Speaker 01:
Other costs is the phrase used.

[00:13:53] Speaker 01:
In the present case, the respondent does not object to the cost used to establish guardianship.

[00:13:59] Speaker 01:
Respondent concedes that under the proffer they filed and the special master's decision that the establishment of guardianship was a precondition to payment.

[00:14:11] Speaker 05:
Even if once a guardianship is established, there is by law, by operation of law, an ongoing payment obligation, how is that

[00:14:20] Speaker 05:
ongoing payment obligation already incurred within the meaning of black?

[00:14:25] Speaker 01:
Well, I think within the meaning of black, first I think it's notable that this court has already interpreted the term incur in the context of the Vaccine Act in black.

[00:14:35] Speaker 01:
And they have done so by determining that to an incurred expense means to pay or become liable.

[00:14:41] Speaker 01:
The Court of Federal Claims in that same case determined that liability or

[00:14:47] Speaker 01:
The moment one becomes legally liable is at the moment, not at the moment when one pays off the debt, but when one becomes legally liable.

[00:14:56] Speaker 01:
Patricia was legally liable to establish and maintain guardianship for the remainder of AM's life in order to give effect to the special master's decision awarding damages and the judgment awarding damages.

[00:15:09] Speaker 01:
They call for an annuity that's being

[00:15:11] Speaker 01:
that is making monthly and annual payments to the guardian of AM for the rest of AM's life.

[00:15:17] Speaker 01:
And the payments are significant.

[00:15:19] Speaker 01:
Her damages are significant.

[00:15:22] Speaker 01:
In the underlying merits decision, that is certainly discernible.

[00:15:26] Speaker 01:
But the payments being made to her on a monthly and annual basis are also significant.

[00:15:32] Speaker 01:
So the legal liability to keep that guardianship maintained for the remainder of her life exists at the time of judgment.

[00:15:41] Speaker 01:
It is the only, the guardianship is the only vehicle by which AM is able to receive the compensation awarded to her.

[00:15:52] Speaker 03:
Within the meaning of black.

[00:15:54] Speaker 03:
So this just keeps to my mind coming down to this.

[00:15:59] Speaker 03:
question whether when you incur an obligation to make future payments, whether that is what is covered by 15E's reference to incurred, or whether you actually have to, you don't incur the obligation to make each payment until that payment is due.

[00:16:22] Speaker 03:
How do we think about that choice?

[00:16:24] Speaker 01:
Well, certainly the, I understand what you're saying, the payments will be made in the future.

[00:16:29] Speaker 01:
But petitioner Rachel McCulloch is legally liable to give effect to the judgment.

[00:16:33] Speaker 01:
The Court of Federal Acclaims issued a judgment that supplies AM with compensation for her injuries.

[00:16:41] Speaker 01:
The guardianship must be maintained to give effect and to give rise to that judgment.

[00:16:46] Speaker 03:
And remind me, the special master's order here, what did it say about what would happen if

[00:16:55] Speaker 03:
the family moved out of Florida and out of North Carolina and out of any state into a place where there were no fee, guardian maintenance fee.

[00:17:08] Speaker 01:
The special master's order, are you speaking of the special master's fee decision?

[00:17:12] Speaker 01:
Yes.

[00:17:12] Speaker 01:
So the special master actually addressed respondent's concerns of a windfall coming to the petitioner should something like that happen and he proposed certain mechanistic tools to

[00:17:25] Speaker 01:
you know, kind of a ward off that from happening.

[00:17:31] Speaker 01:
There's the proposal that an annuity could be purchased for the government on the contingency of AM's life.

[00:17:41] Speaker 01:
There's also, it's not specifically in his decision, but there are other mechanisms and tools that the respondent and the petitioner could consider to effectuate the court of federal claims judgment

[00:17:54] Speaker 01:
all while addressing respondents' concerns of a windfall.

[00:17:59] Speaker 01:
There's also no indication that Petitioner intends to move out of state.

[00:18:05] Speaker 01:
I understand that is a possibility.

[00:18:09] Speaker 01:
And actually, it's something that was recently addressed in a special master's decision, Martin v. Secretary of Health and Human Services.

[00:18:17] Speaker 01:
The special master there, it's on point with an award of fees to maintain guardianship.

[00:18:25] Speaker 01:
The special master there understood respondents' concerns, but balanced that with the giving rise and effect to the judgment to effectuate the judgment and provide compensation to AM.

[00:18:40] Speaker 05:
But the Court of Federal Claims didn't agree with the special master's interpretation of 15E, right?

[00:18:47] Speaker 01:
The Court of Federal Claims, the judge and the Court of Federal Claims

[00:18:53] Speaker 01:
specifically talked about costs, petitioners' costs awarded under 15A.

[00:18:57] Speaker 01:
But what is significant is that he did not vacate the special master's decision.

[00:19:01] Speaker 01:
He affirmed the decision.

[00:19:02] Speaker 05:
He affirmed the decision under 15A, but acknowledged that the analysis under 13E would be flawed, right?

[00:19:10] Speaker 01:
In his opinion, he did say that the costs are better awarded under 15A.

[00:19:16] Speaker 01:
But ultimately, he did not vacate the special master's decision.

[00:19:20] Speaker 01:
And the judgment that issued in April 2018

[00:19:23] Speaker 01:
give effect to the special master's decision as well as the court of federal claims decision in awarding these costs to petitioner.

[00:19:32] Speaker 05:
Do you know how many states other than Florida have this issue?

[00:19:36] Speaker 01:
I do not know how many states other than Florida have this issue.

[00:19:40] Speaker 01:
It kind of pops up when a petitioner comes to us from different states and different states change.

[00:19:47] Speaker 01:
But there has been some states in the or some case law that suggests different states

[00:19:52] Speaker 01:
do have filing requirements, bond requirements, similar to what we see here.

[00:19:57] Speaker 01:
And then there's some case law to suggest that other states do not.

[00:20:01] Speaker 01:
I think what's important here is, in what makes this case a little bit different than some of the other cases in the past, is the extent of the injuries suffered by AM.

[00:20:11] Speaker 01:
She's incapacitated for the remainder of her life.

[00:20:14] Speaker 01:
So a lot of the decisions involving this specific point really discuss when the

[00:20:22] Speaker 01:
minor reaches the age of majority.

[00:20:24] Speaker 01:
And that's just not an issue in this case.

[00:20:27] Speaker 01:
So regardless of where a petitioner lives, there is going to be significant funding in and out of the guardianship account based on the annuity payments yearly and monthly for the remainder of AM's life.

[00:20:49] Speaker 03:
I think it's significant here.

[00:20:50] Speaker 03:
Let me just follow up on something I think I asked before.

[00:20:54] Speaker 03:
The special master's order would or would not allow the government to pay this amount on a yearly basis until such time if it ever occurred that the family moved out of a state where maintenance fees were required to keep a guardianship going.

[00:21:13] Speaker 01:
The special master allowed for the respondent to pay out these costs via the purchase of an annuity.

[00:21:19] Speaker 03:
And did the special master allow the ongoing 40-year payment once a year from the government or not?

[00:21:29] Speaker 01:
Are you talking about specific to the guardianship fees or are you talking about the underlying annuity?

[00:21:34] Speaker 01:
He allowed, he gave respondent the option to purchase an annuity or pay it out in a lump sum and because the obligation to pay maintenance fees came to an end because

[00:21:46] Speaker 03:
the family was no longer in the state, in a state requiring it, then so would the government's obligation to, under the fees opinion, the special master's fees award would also come to an end.

[00:22:01] Speaker 01:
So I am not very privy to the ways in which the respondent purchases an annuity and what's required.

[00:22:09] Speaker 01:
I'd have to defer to my colleague on that.

[00:22:11] Speaker 03:
I'm not being clear.

[00:22:14] Speaker 03:
I'm not asking about what the government will choose to do, what it does in other cases.

[00:22:19] Speaker 03:
I'm asking only about what the order from the special master permits the government to do.

[00:22:27] Speaker 03:
The government is concerned about this windfall, about what if a week from now, or a year from now, or four years from now, they move out of Florida and into a state where there are no maintenance fees required.

[00:22:41] Speaker 03:
We don't want to keep paying.

[00:22:43] Speaker 03:
Does the special master's order on this subject permit that?

[00:22:49] Speaker 03:
Permit them to stop paying if that happens?

[00:22:52] Speaker 01:
I don't think it excludes the possibility.

[00:22:54] Speaker 01:
It does specifically permit for them to provide or purchase an annuity for the remainder of her life.

[00:23:00] Speaker 01:
So should she pass away, there would be notification to the government and the annuity funds would stop.

[00:23:09] Speaker 01:
you know, but specifically he does address the concerns of a windfall in that manner.

[00:23:21] Speaker 01:
The special master based his decision on section 15E and I think again it's worth repeating that the respondent's proffer requires guardianship maintained in order for the petitioner to receive her annuity payments and her damages.

[00:23:37] Speaker 01:
Petition became legally liable for the cost to maintain guardianship on the issuance of the December 2016 judgment.

[00:23:47] Speaker 01:
One cannot disentangle the awarded compensation for AM's injuries or vaccine injuries from the requirement to maintain the guardianship.

[00:23:59] Speaker 01:
Again, guardianship is the only vehicle through which AM may receive compensation.

[00:24:06] Speaker 01:
In terms of the jurisdictional arguments raised by the respondent in the Court of Federal Claims decision, it's worth noting that the Court of Federal Claims reached the same conclusion of the special master and affirmed the decision, did not vacate it.

[00:24:21] Speaker 01:
Respondent's argument is that, in effect, this is some sort of appeal or some repel of the earlier judgment awarding compensation in 2016.

[00:24:32] Speaker 01:
However, the

[00:24:35] Speaker 01:
review of the record shows that there is no appeal, that there is just multiple decisions and multiple judgments, which is actually routine practice in the vaccine program.

[00:24:48] Speaker 04:
The judgment.

[00:24:49] Speaker 04:
The case was final earlier.

[00:24:52] Speaker 04:
And there was a joint notice not to seek review.

[00:24:57] Speaker 04:
And so why wasn't it over earlier?

[00:25:05] Speaker 01:
joint notice not to seek review of the special master's determination on damages, decision of warning damages.

[00:25:10] Speaker 01:
Certainly that case was not appealed, and I don't believe that the court of federal claims April 2018 decision actually works in effect or overtly to appeal that decision.

[00:25:27] Speaker 01:
And again, I do think it's worth noting that the April 2018

[00:25:34] Speaker 01:
18 judgment awards compensation.

[00:25:37] Speaker 01:
It does not contradict the earlier 2016 judgment.

[00:25:42] Speaker 01:
The judgment does not indicate or specify what section those costs are awarded under.

[00:25:49] Speaker 04:
But if that earlier judgment under E was incorrect, then it was too late to bring it under A.

[00:26:00] Speaker 01:
Well, the earlier judgment under E, again, was not vacated.

[00:26:03] Speaker 01:
It was affirmed.

[00:26:05] Speaker 01:
And the April 18 judgment that flowed from that is just a separate award and determination of costs.

[00:26:18] Speaker 01:
And again, the practice of having multiple costs, excuse me, multiple decisions and judgments awarding different types of compensation in this program is well recognized.

[00:26:33] Speaker 01:
I do think it's worth mentioning as well that the Court of Federal Claims certainly had the power to vacate the special master's decision but did not do so.

[00:26:40] Speaker 01:
He specifically affirmed it.

[00:26:47] Speaker 05:
So what you're asking us to do is to affirm the Court of Federal Claims decision but under a different legal theory, the 15E?

[00:26:55] Speaker 01:
I think that both of the decisions, the special master and the court of federal claims, can be maintained.

[00:27:02] Speaker 01:
I don't think that they're necessarily mutually exclusive.

[00:27:04] Speaker 01:
I think the holdings in each are valid.

[00:27:08] Speaker 01:
I think these costs can be bought under 15A or 15E.

[00:27:11] Speaker 01:
It's customary in this program, just by routine practice of the parties, that they are handled under 15E.

[00:27:18] Speaker 01:
And that is something that's also alluded to and addressed in the recent Martin decision as well.

[00:27:24] Speaker 03:
So you're saying as a matter of general practice from your knowledge, these kinds of costs tend to be included in the post merits fee award, not in the merits 15A?

[00:27:40] Speaker 01:
In my experience, in my review of the case law, these are traditionally handled under 15A.

[00:27:47] Speaker 04:
Which relates to attorney fees.

[00:27:49] Speaker 01:
Well, it allows for attorney's fees and other costs.

[00:27:52] Speaker 01:
So it allows for attorney's fees.

[00:27:54] Speaker 04:
Other costs, but it's under E, which is attorney fees.

[00:27:57] Speaker 01:
Sure.

[00:27:58] Speaker 01:
And petitioner's costs are routinely included and adjudicated as well.

[00:28:02] Speaker 01:
Sometimes nominal things, such as the filing fee to file the petition or petitioner's costs to gather and send medical records to the attorney.

[00:28:12] Speaker 01:
So petitioner's costs, just as a general grouping,

[00:28:17] Speaker 01:
very often in almost every case that they are incurred, handled under 15E.

[00:28:23] Speaker 04:
Thank you, counsel.

[00:28:26] Speaker 04:
Mr. Prince Prado has some rebuttal time.

[00:28:32] Speaker 00:
Just briefly, two points.

[00:28:34] Speaker 00:
Judgment on the merits in this case was for all compensation that would be awardable under 15A.

[00:28:39] Speaker 00:
By awarding further compensation under 15A on the attorney's fees issue, the Court of Federal Claims effectively did overrule the earlier final marriage judgment.

[00:28:51] Speaker 00:
And to the second point, the special master proposed a life contingent annuity only.

[00:28:56] Speaker 00:
It didn't take care of the possibility that petitioner would move out of the state.

[00:29:00] Speaker 00:
It didn't account for any other potential scenarios where a petitioner wouldn't have to pay these costs.

[00:29:05] Speaker 04:
But the opposing counsel says that

[00:29:08] Speaker 00:
The fees of this nature are generally dealt with under E. They're generally brought under E. And they're often, I can't think of a case where they've been awarded other than in this case and in Tadio, the same special master.

[00:29:22] Speaker 00:
And the Tadio case was mentioned in the Court of Federal Claims decision, I believe, on Appendix Page 7.

[00:29:29] Speaker 00:
And the Court of Federal Claims explicitly disagreed with that.

[00:29:32] Speaker 00:
We have several other cases.

[00:29:34] Speaker 05:
I'm sorry.

[00:29:34] Speaker 05:
We're talking so fast.

[00:29:35] Speaker 00:
Oh, I'm sorry.

[00:29:36] Speaker 00:
These claims are typically, these types of fees and costs are typically brought under 15E.

[00:29:41] Speaker 05:
So the Taddeo case, did that go up?

[00:29:43] Speaker 00:
That did not.

[00:29:44] Speaker 00:
That was not appealed.

[00:29:46] Speaker 05:
So the government let those payments be made in one case but not another?

[00:29:51] Speaker 00:
The government can't appeal every single case.

[00:29:53] Speaker 00:
We chose to do it here and we had the Court of Federal Claims... You chose to do it where the damage was so severe?

[00:30:00] Speaker 00:
We thought that we had a good legal theory here.

[00:30:04] Speaker 00:
And the other cases that we've cited have disagreed that these costs are compensable under 15E.

[00:30:10] Speaker 00:
We look at the case Crespo.

[00:30:11] Speaker 00:
It was very recently out of the Court of Federal Claims that agreed with the government that these costs are not compensable under 15E.

[00:30:18] Speaker 00:
The only special master I know of that has found that these costs are compensable under 15E is the special master in this case.

[00:30:28] Speaker 00:
And he was the same special master in Tadia.

[00:30:31] Speaker 04:
Does the joint notice have special meaning here?

[00:30:36] Speaker 00:
I'm sorry, the joint notice.

[00:30:37] Speaker 04:
Does the joint notice have special meaning here?

[00:30:39] Speaker 00:
The joint notice not to seek review?

[00:30:41] Speaker 00:
Yes.

[00:30:41] Speaker 00:
That rendered the merits decision final and unappealable.

[00:30:45] Speaker 00:
So the joint notice not to seek review of the merits decision rendered that decision final.

[00:30:51] Speaker 04:
But your view is these costs wouldn't have been covered under A anyway.

[00:30:55] Speaker 00:
Correct.

[00:30:56] Speaker 00:
They wouldn't be awardable as either under A or E.

[00:31:00] Speaker 00:
Court of Federal Claims said that they would be awardable as case management.

[00:31:04] Speaker 04:
It talks about the future.

[00:31:05] Speaker 04:
It uses will be.

[00:31:06] Speaker 04:
And these costs relate to residential and custodial care, case management services.

[00:31:17] Speaker 00:
That's correct.

[00:31:17] Speaker 00:
So the Court of Federal Claims concluded that these costs would be awardable as case management services or residential and custodial care and services.

[00:31:28] Speaker 00:
But in doing so, he

[00:31:30] Speaker 00:
He took them out of the context and applied too broad of a definition for both of those terms.

[00:31:38] Speaker 00:
Those terms appear in an enumerated list under 15A, and they must be construed in the context of the surrounding terms.

[00:31:44] Speaker 00:
And so we also have 15D, which is compensation that is specifically not awardable.

[00:31:52] Speaker 00:
It excludes from the Act.

[00:31:53] Speaker 00:
It says compensation other than for the health, education, and welfare of a petitioner is not awardable under the Act.

[00:32:00] Speaker 00:
The Court of Federal Acclaims in a prior case, Holsey v. the Secretary of Health and Human Services adopted the correct definition of case management services.

[00:32:09] Speaker 00:
In that case, the Court correctly concluded that the term encompasses the coordination of social and medical services from various sources.

[00:32:16] Speaker 00:
Rejected the argument that the term can be read expansively to include fiduciary services.

[00:32:21] Speaker 00:
And similarly, the term residential and custodial care and service expenses must also be construed narrowly

[00:32:27] Speaker 00:
Again, this is a term that appears as an enumerated list of elements of compensation for medical and educational services.

[00:32:33] Speaker 05:
On your D argument, are you saying that these guardianship fees couldn't fall under the welfare of the person?

[00:32:42] Speaker 00:
Right.

[00:32:42] Speaker 00:
So they couldn't be awarded as case management services or residential care and custodial expenses as the court of federal claims held.

[00:32:50] Speaker 00:
And they couldn't fit under 15A because 15A speaks exclusively to- All right, but you're not saying that D would exclude it when they talk about the health and patient welfare of the patient.

[00:33:02] Speaker 00:
Well, D is explicitly a limiting principle in the statute that says there's a certain compensation that won't be awarded.

[00:33:08] Speaker 05:
I mean, assuming we're not talking about E or A, you're not saying that this wouldn't fall within the bounds of the welfare of the patient.

[00:33:17] Speaker 00:
Well, it might fall within.

[00:33:19] Speaker 00:
Well, I don't think we can expansive.

[00:33:21] Speaker 05:
Sorry.

[00:33:22] Speaker 05:
Patient needs a guardian.

[00:33:24] Speaker 05:
That's a gift.

[00:33:25] Speaker 00:
Right.

[00:33:28] Speaker ?:
Okay.

[00:33:28] Speaker 04:
Do you have one final thought?

[00:33:30] Speaker 00:
Um, one final thought.

[00:33:32] Speaker 00:
Um, I just want to briefly return to the, uh, the fact that the special master only proposed a life contingent inuity.

[00:33:41] Speaker 00:
That only takes care of one scenario where a petitioner might not pay these costs.

[00:33:46] Speaker 00:
That doesn't sound like a final thought.

[00:33:49] Speaker 00:
It sounds like an additional thought.

[00:33:50] Speaker 00:
My very final thought is that we can imagine scenarios in which petitioners are not going to pay these costs.

[00:33:56] Speaker 00:
If we can imagine those scenarios, they have not yet been incurred.

[00:34:00] Speaker 00:
The secretary respectfully requests that the judgment be reversed.

[00:34:02] Speaker 04:
Thank you.

[00:34:03] Speaker 04:
Thank you, counsel.

[00:34:03] Speaker 04:
The case is submitted.

[00:34:08] Speaker 05:
All rise.