Attorney’s fees; Waiver by HHS
Dorego v. HHS, (Fed. Cl. Spec. Mstr. Apr. 4, 2016) (Moran, SM)
In response to Petitioner’s fee application, Respondent “defer[red] to the special master’s discretion in determining a reasonable fee award.” Respondent contended that this did not constitute a waiver or failure to object, but the special master held that it did. Contrary to HHS’ present position, the court further held that Respondent is required to file a response to a fee application under Rule 20 because a fee application is treated as a motion. Further, the special master implied that the failure to do so might even be a failure of Respondent’s duty to the interests of the US. Petitioner was awarded all of the fees and costs requested. Practice tip: just because you state in a pleading that something should not be construed as, for example, a waiver, doesn’t mean it will not be.