Rachel McCulloch, As Parent and Legal Guardian of A.m. v. Secretary of Health and Human Services

United States Court of Appeals
for the Federal Circuit
______________________
RACHEL MCCULLOCH, AS PARENT AND LEGAL
GUARDIAN OF A.M.,
Petitioner-Appellee
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellant
______________________
2018-2046
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-vv-00293-CFL, Judge Charles F. Lettow.
______________________
Decided: May 3, 2019
______________________
CHRISTINA CIAMPOLILLO, Conway Homer, PC, Boston,
MA, argued for petitioner-appellee. Also represented by
RONALD C. H OMER.
D ANIEL ANTHONY P RINCIPATO, Vaccine/Torts Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellant. Also repre-
sented by J OSEPH H. HUNT , ALEXIS B. BABCOCK, C.
SALVATORE D'ALESSIO , CATHARINE E. R EEVES .
______________________

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MCCULLOCH v. HHS 2
Before L OURIE, O’M ALLEY , and T ARANTO, Circuit Judges.
T ARANTO, Circuit Judge.
Rachel McCulloch, acting as guardian on behalf of her
daughter A.M., filed a petition for compensation for vac-
cine-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) (Li-
ability Decision), the parties agreed on the amounts to be
paid, and a decision and judgment on the merits were en-
tered 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 De-
cision); 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 main-
tained 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 guardian-
ship-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).

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MCCULLOCH v. HHS 3
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 un-
der § 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 modifi-
cation 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 autoim-
mune limbic encephalitis and an intractable seizure disor-
der, 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 compen-
sation under the statute for A.M.’s injury. Liability Deci-
sion, at *1. The parties then agreed on the amounts and
mechanisms of compensation, and the special master ac-
cepted the agreement on November 28, 2016. Compensa-
tion 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 ex-
penses, and satisfaction of a Medicaid lien. Id. It also in-
cluded funding for an annuity to “provide [periodic]
payments for the life care items contained in the life care

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MCCULLOCH v. HHS 4
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 guard-
ian(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 at-
torneys’ 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, determin-
ing that she incurred liability for the guardianship-mainte-
nance expenses as required by the statute. Fees/Costs
Decision, at *1, *5–8. The special master gave the govern-
ment the option either to pay the guardianship-mainte-
nance 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

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MCCULLOCH v. HHS 5
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. § 300aa-12(f) and 28 U.S.C. § 1295(a)(3).
II
The Court of Federal Claims lacked jurisdiction to
grant Ms. McCulloch the guardianship fees under § 300aa-
15(a). Based on the parties’ agreement about the compen-
sation that would be awarded under § 300aa-15(a), the spe-
cial master rendered his decision on November 28, 2016.
When the parties filed a notice that no appeal would be
taken, judgment was entered on that decision on December
7, 2016. Given the parties’ agreement that this award con-
stituted “compensation for all damages that would be avail-
able under 42 U.S.C. § 300aa-15(a),” Compensation
Decision, at *1, the award was not an interim award that
could later be supplemented. See Lerwick v. Sec’y of Health
& Human Servs., No. 06-847V, 2014 WL 1897656, at *1−8
(Fed. Cl. Apr. 16, 2014) (discussing interim awards under
§ 300aa-15(a)).
The statute permits only 30 days to seek review of the
special master’s decision in the Court of Federal Claims, 42
U.S.C. § 300aa-12(e)(1), and we have treated the 30-day pe-
riod as “jurisdictional,” Widdoss v. Sec’y of Dep’t of Health
& Human Servs., 989 F.2d 1170, 1177 (Fed. Cir. 1993).
Neither party appealed from the November 28 decision—
or from the December 7 judgment—within the 30 days.
There is no justification for departing, in this context, from
the broadly applicable rule that finality of a merits judg-
ment is not postponed pending resolution of an issue of

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MCCULLOCH v. HHS 6
attorney’s fees. See Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 202 (1988) (“[A]n unresolved issue of attor-
ney’s fees . . . does not prevent judgment on the merits from
being final.”); Special Devices, Inc. v. OEA, Inc., 269 F.3d
1340, 1345 (Fed. Cir. 2001) (same). Indeed, motions for
fees and costs under § 300aa-15(e) are treated as separate
proceedings under the Vaccine Rules. Ct. Fed. Cl. Vaccine
R. 10(c), 13(b). It follows that the merits judgment—com-
pensation under § 300aa-15(a)—was final in this matter,
and no longer reviewable on appeal, long before Ms. McCul-
loch even moved for fees and costs in June 2017, let alone
before the Court of Federal Claims was asked to review the
special master’s ruling on that motion. See Budinich, 486
U.S. at 203 (merits ruling not reviewable, where not timely
appealed, on appeal from fees ruling).
In the Court of Federal Claims, as in district courts, the
governing procedural rules provide in certain circum-
stances for “relief from a final judgment [or] order”—spe-
cifically, based on mistake, newly discovered evidence,
fraud, void judgments, satisfied judgments, or “any other
reason that justifies relief.” Ct. Fed. Cl. R. 60(b). But that
authorization does not apply here.
The Supreme Court has held that Rule 60(b) is not a
substitute for a timely appeal. United Student Aid Funds,
Inc. v. Espinosa, 559 U.S. 260, 270 (2010). We have held
the same in the context of the Vaccine Act and the Court of
Federal Claims rules. Patton v. Sec’y of Dep’t of Health &
Human Servs., 25 F.3d 1021, 1028 (Fed. Cir. 1994);
Widdoss, 989 F.2d at 1177–78. To rely on Rule 60(b) here
would be to use it simply as a substitute for appeal to seek
a change that could have been sought at the time that the
appeal opportunity was available but bypassed.
This case is not like Patton, where the special master
deferred granting pain-and-suffering damages until the at-
torneys’ fees proceeding and then did not include them
when ruling on the motion for attorneys’ fees. 25 F.3d at

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MCCULLOCH v. HHS 7
1024. The special master deemed the absence of a ruling
on pain-and-suffering damages as an inadvertent error,
and we held it rectifiable under Rule 60(b). Id. at 1029−30.
There is no such error here. The final merits decision and
judgment embodied what the parties (and the special mas-
ter) agreed was a complete resolution of the merits, i.e., of
compensation under § 300aa-15(a). Relief under Rule 60(b)
was therefore unavailable.
Because we have determined that the Court of Federal
Claims lacked jurisdiction to consider awarding expenses
for maintaining a guardianship under § 300aa-15(a), we do
not reach the issue of the availability of that subsection to
award such expenses. Not reaching the merits of the
§ 300aa-15(a) issue, we indicate neither agreement nor dis-
agreement with the conclusions of the Court of Federal
Claims regarding the types of expenses covered by § 300aa-
15(a). This court’s review of whether § 300aa-15(a) permits
compensation for the types of guardianship-maintenance
expenses at issue here will have to await another case.
III
The remaining issue in this case is whether the special
master was correct in holding that the guardianship-
maintenance expenses at issue were properly awardable
under § 300aa-15(e)(1). We conclude that he was.1
The subsection embraces “reasonable attorneys’ fees”
and “other costs” “incurred in any proceeding on [the Vac-
cine Act] petition.” 42 U.S.C. § 300aa-15(e)(1). The gov-
ernment does not take a narrow view of “reasonable
attorneys’ fees” or “other costs”; for example, it
1 In so ruling, we do not decide that such expenses
are not awardable under § 300aa-15(a). We decide neither
the scope of § 300aa-15(a) on its own terms nor whether
that subsection reaches certain expenses that also fit, in
the alternative, under § 300aa-15(e).

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MCCULLOCH v. HHS 8
acknowledges that the phrases cover expert fees, which
have long been awarded under the provision. Oral Arg. at
7:33–43. In particular, the government does not dispute
that the guardianship-maintenance expenses fall within
“other costs.” Notably, it has not challenged the special
master’s award of the initial guardianship-registration ex-
penses, needed for initial collection of amounts under the
merits judgment, as within § 300aa-15(e)(1). J.A. 59,
61−62, 105.
Rather, the government focuses entirely on the “in-
curred in” language. Even as to that language, the govern-
ment makes no argument that the expense at issue must
be solely attributable to the Vaccine Act proceeding; again,
the government did not object to inclusion of the expense of
initially establishing a guardianship under Florida law,
whose purpose presumably was not limited to the Vaccine
Act proceeding. The government’s only argument is a time-
related one: it argues that “incurred in” excludes future
payments for guardianship-maintenance expenses simply
because they are not yet due to be made. We disagree.
We follow the government part of the way in its analy-
sis. The government relies on this court’s decision in Black
v. Secretary of Health and Human Services, 93 F.3d 781
(Fed. Cir. 1996), as indirectly furnishing a standard for ap-
plying “incurred in” for § 300aa-15(e)(1). See Gov’t Br. at
21−22. There, we explained that the phrase “incurred rea-
sonable expenses” in a different provision of the Vaccine
Act “does not refer to anticipated payments or obligations
for which liability has not already attached.” Id. at 786
(Fed. Cir. 1996). We accept, at least for purposes of this
case, the borrowing of that formulation to help apply
§ 300aa-15(e)(1). But we conclude, contrary to the govern-
ment’s position, that the “liability/attached” formulation is
best applied in this context to mean that liability for guard-
ianship-maintenance expenses did attach in these Vaccine
Act proceedings, because the continuing payment of those

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MCCULLOCH v. HHS 9
expenses over time is a condition of receipt of the full com-
pensation provided for A.M. in the merits judgment.
Black explains that “[i]n ordinary usage, . . . to ‘incur’
expenses means to pay or become liable for them.” Id. at
785 (emphasis added). In one common usage, a person be-
comes liable for yet-to-arise expenses at the time of under-
taking an obligation to pay those expenses if and when they
arise. See Liability, Black’s Law Dictionary (10th ed. 2014)
(defining liability as the state “of being legally obligated or
accountable,” through civil or criminal penalties); see also
Standard Oil Co. of Ohio v. Fed. Energy Admin., 612 F.2d
1291, 1297 n.5 (Temp. Emer. Ct. App. 1979) (holding that
a party became liable under a contract “upon signing the
contracts . . . not with the delivery” of the goods); Akerly v.
N.Y. Cent. R. Co., 168 F.2d 812, 814 (6th Cir. 1948) (“[T]he
first, and more inclusive definition [of liability] is ‘The state
or quality of being liable.’ Liable, in turn, is defined as be-
ing ‘bound or obliged in law or equity; responsible; . . . an-
swerable or exposed to a certain contingency or casualty of
an undesired character.’”); Md. Sav. Share Ins. Corp. v.
United States, No. 154-75, 1980 WL 4700, at *12 (Ct. Cl.
Feb. 26, 1980) (“[B]oth sides agree that losses ‘incurred’
means losses for which the insurer has become liable dur-
ing the taxable year even if they have not yet been reported
to it.”). That notion fits the present context much better
than the government’s notion that no current liability has
attached for future years’ guardian-maintenance expenses
even though maintaining the guardianship is a legal pre-
condition to continuing receipt of the annuity portion of the
merits-judgment compensation for A.M.
The compensation-providing judgment limits future
payments “to the party or parties appointed by a court of
competent jurisdiction to serve as guardian(s).” Compen-
sation Decision, at *4. To carry out that judgment for the
benefit of A.M., Ms. McCulloch had to establish, and she or
a successor had to maintain, a guardianship in order to re-
ceive the payments for the care of A.M., including the

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MCCULLOCH v. HHS 10
annuity payments over the course of many years into the
future. The underlying government proffer, agreed to by
the parties, recognized that Ms. McCulloch had been ap-
pointed as a guardian under the law of Florida, where the
family lived. The current liability for such guardian-
maintenance expenses as relevant law required into the fu-
ture matched, and was the counterpart to, the current right
to receive payments into the future. This situation differs
from a situation, discussed in Ex rel. Crespo v. Secretary of
Health and Human Services, 139 Fed. Cl. 231, 236 (2018),
where a Vaccine Act judgment of a lump-sum payment re-
quires only the establishment, but not continuing mainte-
nance, of a guardianship. In the present circumstances, the
best application of the government-urged Black test is that
continuing legally required guardianship-maintenance ex-
penses are incurred in the Vaccine Act proceeding where,
as here, their payment is a precondition for continuing re-
ceipt of the compensation granted in the judgment.
Accordingly, we agree with the special master that
these expenses come within § 300aa-15(e)(1). We note that
the special master’s order permits the government either
to pay a lump sum or to buy an annuity to fund the guard-
ianship-maintenance expenses. J.A. 26. That order leaves
the possibility of overpayment insofar as it does not ex-
pressly provide for cessation of government payments if, for
example, a relocation out of Florida leads to a guardianship
in another State whose law does not impose comparable
maintenance expenses. But the government in this case
made only its more categorical statutory arguments
against award of guardianship-maintenance expenses; it
did not more narrowly seek a modification of the special
master’s order to allow for such cessation. In this circum-
stance, we affirm the judgment of the Court of Federal
Claims, which affirmed the special master’s order.

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MCCULLOCH v. HHS 11
IV
For the reasons stated in this opinion, we affirm the
judgment of the Court of Federal Claims.
AFFIRMED

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