In the United States Court of Federal Claims
No. 13-825V
(Filed: October 12, 2016)*
*Opinion originally filed under seal on September 21, 2016
)
HENRY SIMMONS, )
)
Petitioner, ) Vaccine Act; Attorneys’ Fees and
) Costs; Reasonable Basis for Filing
v. ) Petition
)
SECRETARY OF HEALTH and )
HUMAN SERVICES, )
)
Respondent )
)
Ronald C. Homer, Boston, MA, for petitioner.
Michael P. Milmoe, Civil Division, U.S. Department of Justice, Washington, DC,
with whom were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Rupa
Bhattacharyya, Director, Tors Branch, Vincent J. Matanoski, Deputy Director, Torts
Branch, and Gabrielle M. Fielding, Assistant Director, Torts Branch, for defendant.
OPINION REVERSING
AWARD OF ATTORNEYS’ FEES AND COSTS
FIRESTONE, Senior Judge.
This case comes before the court on the government’s motion for review of
Special Master Hamilton-Fieldman’s decision to award $8,267.89 in attorney’s fees and
costs to Ronald C. Homer (“counsel”), who filed a petition under the National Childhood
Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34. (the “Vaccine Act”) on behalf
of his client, petitioner Henry Simmons (“petitioner”). The petition alleged that Mr.
Simmons had suffered a neurological demyelinating injury as a result of an influenza
(“flu”) vaccination received in 2010. After the petition was dismissed for failure to
prosecute, counsel filed a motion for attorneys’ fees and costs. The government objected
to an award of fees on the grounds that counsel did not have a reasonable basis for filing
the petition and that the petition was not filed in good faith. The Special Master rejected
the government’s arguments and awarded fees and costs to counsel on April 14, 2016
(ECF No. 21). The government filed a motion for review of the Special Master’s fee
decision on May 16, 2016 (ECF No. 23).
For the reasons stated below, the court finds that the Special Master erred in
awarding attorneys’ fees because the record before the Special Master demonstrated that
counsel did not have a reasonable basis to file the petition.
I. BACKGROUND
A. Facts
According to counsel’s motion for attorneys’ fees and costs, filed June 11, 2014,
the petitioner first contacted counsel in August of 2011, claiming that he suffered a
neurological demyelinating injury as a result of the administration of the Flu Vaccine.
See Mot. for Fees, ECF No. 13, at 1. At the time of the initial contact, petitioner provided
counsel with a copy of a record of his vaccination, which occurred on October 26, 2010.
Id. Counsel consulted with petitioner and determined that he had “a potentially viable
vaccine-injury claim.” Id. In his response to the government’s motion to review the
Special Master’s decision, counsel states that at the initial consultation, Mr. Simmons
informed counsel that he had been diagnosed with Guillain-Barre Syndrome (“GBS”) by
a neurologist within weeks of his vaccination. Pet’r.’s Resp. 5. According to counsel’s
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billing record, preparation for the initial conference call and the call itself lasted
approximately an hour and twelve minutes. Mot. for Fees at 5.
Counsel’s records reflect that after the initial consultation, counsel was not able to
reach Mr. Simmons to discuss a petition. The billing records attached to counsel’s fees
petition reflect that after several e-mails and attempts to call Mr. Simmons following the
initial consultation in August of 2011, a paralegal spoke to Mr. Simmons for
approximately twelve minutes on December 15, 2011, in which Mr. Simmons apparently
stated that he would send in the information counsel requested. Id. After that
conversation, counsel’s billing records reflect approximately twenty unsuccessful
additional attempts to call or e-mail Mr. Simmons between January of 2012 and May of
2013. Id. at 5-6. In March 2013, in light of petitioner’s failure to respond, counsel sent
petitioner a letter (via both email and written mail), notifying petitioner that their
attorney-client relationship had been terminated. Id. at 6. The termination letter was
twice returned as undeliverable. Id.
On October 17, 2013, shortly before the statute of limitations was to expire on his
claim and nearly two years since he last had contact with counsel’s firm, Mr. Simmons
contacted counsel’s firm and, in a call lasting less than eighteen minutes, told a paralegal
that he would like to move forward with his petition.1 Id. at 6. Counsel spoke to Mr.
1
The billing entry for this call is for 0.30 hours, including the conversation, conferring with
attorneys at the firm, and setting up a conference call. Id.
3
Simmons one additional time on October 21, 2013 for less than thirty-six minutes.2 Id.
According to counsel’s response to the government’s motion for review, Mr. Simmons
“indicated that he was non-compliant, in part, because it was traumatic for him to relive
the experiences of his GBS, and assured counsel that he would comply with further
requests for information.” Pet.’s Resp. 6.
The next day, October 22, 2013, counsel filed a petition for compensation in the
Vaccine Court on petitioner’s behalf. See Petition, ECF No. 1. The petition is only a few
sentences long, contains few specific facts, and states that “[d]ocuments and affidavits [in
support of the petition] have been requested and will be submitted in support of the
petition once they are received.” Id. ¶ 7. Counsel’s billing records describe the petition
as “skeletal” and reflect that counsel billed less than one hour for drafting and editing the
petition, including paralegal time. Mot. for Fees 6.
After the petition was filed, counsel once again was unable to communicate with
Mr. Simmons despite numerous attempts. Id. at 6-11. In January of 2014, the Special
Master issued an order requiring petitioner to file medical records no later than March 20,
2014, or alternatively, provide a medical release to counsel so that he could obtain the
record. Scheduling Order, ECF No. 6. The order noted that “[w]ithout medical records
or a medical release to request medical records, the undersigned shall have to dismiss this
case.” Id. at 2. On March 20, 2014, petitioner’s counsel filed a status report detailing his
unsuccessful efforts to contact petitioner by telephone, e-mail, regular mail, and by
2
The billing entry for this call is for 0.60 hours, including preparation for the phone call, the
phone call itself, and a memo to file. Id.
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overnight delivery service. Status Report, ECF No. 7. Thereafter, on March 25, 2014,
the Special Master issued an order to show cause why the case should not be dismissed
for failure to prosecute. ECF No. 8. On April 29, 2014, petitioner’s counsel responded
to the order to show cause stating: “To date, the petitioner has not contacted petitioner’s
counsel, nor have repeated attempts by counsel to contact the petitioner been successful.”
ECF No. 9. On April 30, 2014, the Special Master issued an order dismissing the case
for failure to prosecute. ECF No. 10. Judgment was entered on June 6, 2014. ECF No.
12.
Counsel filed his initial fee petition on June 11, 2014 seeking $3,897.60 in
attorneys’ fees and $551.39 in costs, for a total of $4,448.99. Mot. for Fees at 3. The
government filed an opposition to the application for fees and costs on July 7, 2014,
citing a lack of good faith and reasonable basis. ECF No. 17. On July 17, 2014, counsel
filed a reply to the government’s opposition, ECF No. 18, and a supplemental application
for attorneys’ fees and costs. ECF No. 19. The supplemental petition sought an
additional $3,818.90 in fees which were incurred primarily in the preparation of
petitioner’s reply in support of its initial fee petition for a total of $8,267.89 in fees and
costs. See id. at 4-5.
B. The Special Master’s Decision
On April 14, 2016 Special Master Hamilton-Fieldman issued an opinion granting
the entirety of the $8,267.89 counsel had requested in fees and costs. Attorneys’ Fees
and Costs Decision (“Fee Dec.”), ECF No. 21. The Special Master noted that the
Vaccine Act allows a Special Master to award attorneys’ fees and costs to an
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unsuccessful petitioner so long as the petition was filed in good faith and there was a
reasonable basis for the claim. Id. at 3 (citing 42 U.S.C. § 300aa-15(e)(1)). The Special
Master found that there was no direct evidence of bad faith, and thus petitioner satisfied
the good faith requirement. Id.
With respect to the government’s argument that counsel lacked a reasonable basis
for filing the petition, the Special Master noted that she had considerable discretion in
determining whether a reasonable basis for filing the claim existed, and found that it did
in this case:
Petitioner provided Counsel with a vaccination receipt, and after consulting
with Petitioner, Counsel judged the claim potentially meritorious. While
that alone may not have provided a reasonable basis for filing a claim,
Petitioner then disappeared for almost two years and reemerged less than
ten days before the statute of limitations expired. Critically, Counsel then
spoke with Petitioner twice before filing the petition on Petitioner’s
behalf.[] To not file a petition at that point, leaving Petitioner to either
obtain new counsel or file pro se with less than a week remaining in the
statute of limitations, would be tantamount to an ethical violation. Under
these circumstances, the undersigned cannot say that no reasonable basis
existed for Petitioner to pursue his claim in this forum.
Id. at 4.
The government subsequently sought review of the Special Master’s decision in
this court. The court determined that oral argument was not necessary for resolution of
the issue.
II. STANDARD OF REVIEW
This court may reverse a decision of a Special Master if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-
12(e)(2)(B). The “decision whether a particular petition was brought in good faith and
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had a reasonable basis at the time of filing, and therefore that counsel would be entitled to
attorneys’ fees, is within the discretion of the Special Master and is generally reviewed
for abuse of discretion.” Scanlon v. Sec’y of Health & Human Servs., 116 Fed. Cl. 629,
633 (2014) (citing Davis v. Sec’y of Health & Human Servs., 105 Fed. Cl. 627, 633
(2012)).
In order to reverse the decision of a Special Master for abuse of discretion, this
court must find that the Special Master’s decision was either (1) “clearly unreasonable,
arbitrary, or fanciful;” (2) “based on an erroneous conclusion of the law;” (3) “clearly
erroneous,” or (4) “the record contains no evidence on which the ... [Special Master]
rationally could have based his decision.” Id. (quoting Ninestar Tech. Co. v. Int’l Trade
Comm’n, 667 F.3d 1373, 1379 (Fed. Cir. 2012); see also Chuisano v. United States, 116
Fed. Cl. 276, 284 (2014). If “the Special Master has ‘considered the relevant evidence of
record, drawn plausible inferences, [and stated] a rational basis for the decision,”
reversible error is extremely difficult to establish.’” Silva v. Sec’y of Health & Human
Servs., 108 Fed. Cl. 401, 405 (2012) (quoting Hines v. Sec’y of Health & Human Servs.,
940 F.2d 1518, 1528 (Fed. Cir. 1991)).
III. DISCUSSION
Under the Vaccine Act, an unsuccessful petitioner may be awarded attorneys’ fees
under certain circumstances:
If the judgment of the United States Court of Federal Claims on such a
petition does not award compensation, the special master or court may
award an amount of compensation to cover petitioner's reasonable
attorneys’ fees and other costs incurred in any proceeding on such petition
if the special master or court determines that the petition was brought in
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good faith and there was a reasonable basis for the claim for which the
petition was brought.
42 U.S.C. § 300aa-15(e)(1) (emphasis added). Good faith and reasonable basis are “two
distinct facets” that must be judged separately. Chuisano, 116 Fed. Cl. at 289.
Moreover, while good faith on behalf of petitioner’s counsel is a subjective inquiry, the
question of whether there was a reasonable basis for the claim is an objective inquiry. Id.
(citing McKellar v. Sec’y Health & Human Servs., 101 Fed. Cl. 297, 303 (2011)). In
determining whether a claim has a reasonable basis, special masters apply a totality of the
circumstances test, considering factors such as “the factual basis, the medical support,
and jurisdictional issues,” including the statute of limitations. Chuisano, 116 Fed. Cl. at
288 (citation omitted). Ultimately, however, a “petitioner must affirmatively establish a
reasonable basis to recover attorneys’ fees and costs.” Id. at 287. (quoting McKellar,
101 Fed.Cl. at 304). This burden is something less than the preponderant evidence
ultimately required to prevail on one’s vaccine-injury claim. Id. However, the courts
have recognized that a petitioner “must furnish some evidence in support” of the claim
“to establish the statutory requirement of reasonable basis.” Id. at 288. (citing Woods v.
Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 152 (2012)); Turpin v. Sec’y Health
& Human Servs., No. 99–564V, 2005 WL 1026714, *2 (Fed. Cl. Spec. Mstr. Feb. 10,
2005) (finding no reasonable basis when petitioner submitted only one affidavit and no
other records); Brown v. Sec’y Health & Human Servs., No. 99–539V, 2005 WL
1026713, *2 (Fed. Cl. Spec. Mstr. Mar. 11, 2005) (finding no reasonable basis when
petitioner presented only e-mails between her and her attorney).
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In this case, the court finds that the Special Master erred in finding that counsel
had a reasonable basis for petitioner’s claim.3 Counsel failed to produce any evidence,
either at the time the petition was filed or in the five months before the Special Master
dismissed the case for failure to prosecute, to support the claim that petitioner suffered
from GBS caused by his flu vaccine. “At the most basic level, a petitioner who submits
no evidence would not be found to have reasonable basis because the petitioner could not
meet the burden of proof needed to establish reasonable basis.” Chuisano, 116 Fed. Cl.
at 286 (quoting Chuisano v. Sec’y of Health & Human Servs., No. 07-452V, 2013 WL
6234660, at *13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013)). In this connection, the court finds
that the requirements for a petition set forth in the Vaccine Act are relevant in deciding
whether a petition that is dismissed for lack of prosecution was reasonably filed in the
first instance. There is a reason that the Vaccine Act requires that petitions be
accompanied with evidence of injury or an explanation as to why records are not
available. See 42 U.S.C. § 300aa-11(c) (noting that a petition under the Vaccine Act
“shall contain . . . an affidavit, and supporting documentation, demonstrating” the
petitioner received a vaccine and “sustained, or had significantly aggravated, any illness,
disability, injury, or condition,” or “an identification of any records” listed above “which
3
The Special Master found that because the government did not present any “direct evidence of
bad faith,” counsel was entitled to a presumption of good faith. Fee Dec. at 3 (citing Grice v.
Sec’y Health & Human Servs., 36 Fed. Cl. 114, 121 (1996). The government argues that this
standard improperly shifts the petitioner’s burden of showing good faith to the government, and
argues that given that the record is so scant and does not even contain a “declaration that the
petitioner himself believe that he was injured by a vaccine,” there is no basis to find good faith.
Resp.’s Mot. for Review 13. Because the court finds that the Special Master erred by finding a
reasonable basis for filing the petition, there is no need to decide whether the Special Master
applied the correct test with respect to good faith.
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are unavailable to the petitioner and the reasons for their unavailability.”) The provision
ensures that petitioners and their counsel make some effort to establish that there was a
vaccination and an injury that may be linked to the vaccine.
Had petitioner fulfilled the statutory prerequisites for filing a petition in this case,
indeed had counsel at any time before the case was dismissed produced evidence to show
that petitioner had an injury he alleged was linked to the flu vaccine, recovery of
attorneys’ fees and costs might have been supported. Chuisano, 116 Fed. Cl. at 287
(finding that “the reasonable basis inquiry is broad enough to encompass any material
submitted in support of the claim at any time in the proceeding, whether with the petition
or later.”). This court has previously found that a similar dearth of evidence
demonstrated a lack of reasonable basis. In Woods v. Secretary of Health and Human
Services, this court found that the Special Master “erred in failing to sufficiently analyze
whether there was a reasonable basis for Petitioners’ claim” when the Special Master’s
sole basis for concluding that there was a reasonable basis was the fact that “the parties
had at times engaged in settlement negotiations” and the Special Master “cited no
allegations of injury or causation, no medical records, and no legal authority in
determining that Petitioners’ claim had a reasonable basis.” Woods, 105 Fed. Cl. at 152.
The Special Master found the fact that the statute of limitations was looming when
the petitioner emerged was critical to her conclusion that a reasonable basis existed,
noting that counsel’s conversations with petitioner alone “may not have provided a
reasonable basis for filing a claim” had the statute of limitation not been about to run out.
Fee Dec. 4. The court finds that his reasoning is not persuasive. The fact that the statute
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of limitations was about to expire did not excuse counsel’s obligation to show he had
some basis for the claim beyond his conversation with the petitioner. The court accepts
that “a petitioner nearing the expiration of the statute of limitations may have a
reasonable basis for filing the petition without conducting the same searching inquiry that
may be required in another instance.” Fee Dec. at 3 (citing Hippo v. Sec’y Health &
Human Servs., No. 10-462V, 2012 WL 1658252 (Fed. Cl. Spec. Mstr. Apr. 18, 2012);
Lamar v. Sec’y Health & Human Servs., No. 99-584V, 2008 WL 3845157 (Fed. Cl. Spec.
Mstr. Jul 30, 2008); Hamrick v. Sec’y Health & Human Servs., No. 99-683V, 2007 WL
4793152 (Fed. Cl. Spec. Mstr. Nov. 19, 2007); Peca v. Sec’y Health & Human Servs.,
No. 90-122V, 1992 WL 30423 (Fed. Cl. Spec. Mstr. Feb. 3, 1992)). Nonetheless, a
statute of limitations deadline does not excuse counsel from endeavoring to confirm that
the vaccine injury alleged has occurred by producing supporting evidence. Chuisano,
116 Fed. Cl. at 287 (“A looming statute of limitations does not forever absolve a
petitioner from his or her obligation to proceed with a reasonable basis to support his
claim, at least not if the petitioner hopes to recover any fees and costs.”).
Counsel for petitioner states that he takes seriously his responsibility to file only
claims that have a reasonable basis, and states that in the past year, he rejected 415 of the
576 inquiries he received from potential clients. Pet.r’s Resp. 11. While the court does
not doubt that counsel does his best to ensure that he files only those petitions which he
believes have merit, his actions with regard to inquiries he received last year do not
establish that he met his burden for receiving attorneys’ fees and costs in this case. For
the reasons stated above, the court finds that without presenting any evidence of injury
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either before or after the petition was filed to support the claim counsel cannot show a
reasonable basis for filing the claim and thus the Special Master erred in awarding
attorneys’ fees and costs.
IV. CONCLUSION
The government’s petition for review is GRANTED.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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