Martin v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

******************** *

JESSICA R. MARTIN, *

On behalf of KM, *

* No. 16-318V

Petitioner, * Special Master Christian J. Moran

v. *

* Filed: January 22, 2019

SECRETARY OF HEALTH AND *

HUMAN SERVICES, * Attorneys’ Fees and Costs,

* Guardianship Costs.

Respondent. *

*

******************** *

Dan W. Bolton, III, Bolton Law, PLLC, Cary, NC, for Petitioner;

Voris E. Johnson, Jr., United States Dep’t of Justice, Washington, DC, for

Respondent.

PUBLISHED DECISION AWARDING FINAL

ATTORNEYS’ FEES AND COSTS 1

Jessica Martin brought a successful petition for compensation from the

National Childhood Vaccine Compensation Program. She originally sought

$67,049.37 in attorneys’ fees and costs. An October 31, 2018 decision awarded

her the “irreducible minimum” in attorneys’ fees, and left controversial issues for

another day. At bar now are those controversial items, which include her request

1

Because this decision contains a reasoned explanation for the action in this case, the

undersigned is required to post it on the United States Court of Federal Claims' website in

accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal

Management and Promotion of Electronic Government Services). This means the decision will

be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),

petitioners have 14 days to identify and move to redact medical or other information, the

disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the

undersigned agrees that the identified material fits within this definition, the undersigned will

redact such material before posting the decision.

for costs and attorneys’ fees incurred since judgment entered. For these, she seeks

an award of $33,549.37. She is awarded $26,542.85.

* * *

Represented by Dan Bolton, Ms. Martin filed her petition, on behalf of KM,

for compensation on March 11, 2016. Ms. Martin claimed that various vaccines,

which are contained in the Vaccine Injury Table, 42 C.F.R. §100.3(a), and which

KM received on August 23, 2013, caused KM to suffer transverse myelitis. The

parties were able to resolve the case informally, entering a joint stipulation that

was then adopted. The stipulation provided for one lump sum payment for the

benefit of KM via a “check payable to petitioner as court-appointed

guardian/conservator of the estate of KM,” one lump sum payment to petitioner for

past unreimbursed expenses, and the purchase of an annuity in which the life

insurance company promised to pay a certain amount per month for KM’s life “to

petitioner, as the court-appointed guardian/conservator of the estate of KM.”

Decision, issued Oct. 23, 2017, 2017 WL 6522406 (quotations from stipulation ¶ 8

and ¶ 10). Judgment entered on Oct. 31, 2017.

The stipulation adopted in the decision provided that Ms. Martin would be

established as the guardian of KM’s estate before any payments pursuant to the

stipulation were made. Stipulation at ¶ 16.2 Under North Carolina law, a guardian

of an estate must provide a surety. N.C. GEN. STAT. §35A-1230. 3 This

requirement is reinforced in the next sequential statute: “Before issuing letters of

appointment to a general guardian of the estate the clerk shall require the guardian

to give a bond payable to the State.” N.C. GEN. STAT. §35A-1231(a). The amount

2

This paragraph provides: “Petitioner represents that she presently is, or within 90 days

of the date of judgment will become, duly authorized to serve as guardian/conservator of KM’s

estate under the laws of the State of North Carolina. No payments pursuant to this Stipulation

shall be made until petitioner provides the Secretary with documentation establishing her

appointment as guardian/conservator of KM’s estate. If petitioner is not authorized by a court of

competent jurisdiction to serve as guardian/conservator of the estate of KM at the time a

payment pursuant to this Stipulation is to be made, any such payment shall 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 KM upon submission of written documentation of such appointment to the

Secretary.”

3

In pertinent part, this statute states: “[N]o general guardian or guardian of the estate

shall be permitted to receive the ward's property until he has given sufficient surety, approved by

the clerk, to account for and apply the same under the direction of the court.” N.C. Gen. Stat.

§35A-1230.

2

of this bond is determined by statute. Id. Ms. Martin has paid this bond. See

Pet’r’s Mot., filed Mar. 8, 2018, appd’x 3 at 9.

On February 19, 2018, Ms. Martin filed a motion to amend the October 31,

2017 judgment. Ms. Martin requested the judgment include the cost of securing

this bond, which totals approximately $1,000 per year. 4

The Secretary responded to petitioner’s motion in two parts. First, the

Secretary argued that it was custom in the Vaccine Program to consider costs

associated with maintaining a guardianship as part of the attorneys’ fees and costs

process. Resp’t’s Resp., filed Feb. 27, 2018, at 3 (citing four cases where

guardianship costs were considered as part of that process). The Secretary

continued that amending the judgment was an unnecessary difficulty since the

undersigned could award the guardianship fee as part of the petitioner’s request for

attorneys’ fees and costs. Id. (“if the Special Master were to award any amount

for the guardianship bond fee, it would not be necessary (and in fact would be

more complicated) to amend the October 31, 2017 Judgment”). The second part of

the Secretary’s argument was a “prospective[]” objection to petitioner’s not yet

filed motion for the guardianship costs to be included in petitioner’s attorneys’ fees

and costs award. Id. at 3-7.

Through informal communication between the parties and the undersigned,

the petitioner was advised to include the request for guardianship costs as part of

her motion for attorneys’ fees and costs based on the Secretary’s request. Shortly

thereafter, the petitioner moved to strike her motion to amend the judgment.

Pet’r’s Mot., filed Mar. 5, 2018. The motion to strike was granted. Order, issued

Mar. 8, 2018.

On March 8, 2018, Ms. Martin filed a motion for reimbursement of

attorneys’ fees and costs. As expected, the motion included a request for

compensation of costs associated with creating and maintaining the guardianship

for KM. The motion comprised of the following:

Costs Not Related to Guardianship 14,984.37

Guardianship Costs 12,965.00

Attorney Fees 39,100.00

Total 67,049.37

4

The cost of the bond is a function of the amount bonded. This amount will decrease

each year. The first year of the bond cost the petitioner $1,315 and the last year of the bond cost

the petitioner $410. See Pet’r’s Mot., filed Mar. 8, 2018, appd’x 3 at 7.

3

The Secretary responded to petitioner’s motion. Aside from the objections

to the guardianship costs raised in his February 27, 2018 response, the Secretary

did not object to petitioner’s request. Resp’t’s Resp., filed March 19, 2018, at 2.

Specifically, the Secretary stated that he is “satisfied that the statutory and other

legal requirements for an award of attorneys’ fees and costs are met” and

recommended that the undersigned exercise his discretion in determining “a

reasonable award for attorneys’ fees and costs.” Id. at 2-3.

Because of the complexity of some of the issues presented by the

petitioner’s fees motion, the undersigned issued an order scheduling a status

conference, to be held on July 24, 2018. See order, issued June 28, 2018. In this

order, the undersigned requested that the parties be prepared to answer several

questions relating to the statutory basis for Ms. Martin’s request that guardianship

costs be included in the motion for attorneys’ fees and costs. During the July 24,

2018 status conference, the Secretary requested additional time to formulate his

position on the statutory authority for a special master to award guardianship costs

because he was still formulating his opinion on that very question in a different

case. Order, issued July 26, 2018. This request was granted, and the Secretary

was ordered to submit a brief after his position in the related matter was

formulated. Id. The Secretary filed his brief on August 27, 2018, and the

petitioner replied on September 10, 2018.

On October 23, 2018, the petitioner amended her motion for fees to include

$3,600 in attorney’s fees incurred subsequent to the original fees motion as well as

$2,000 spent on establishing a special needs trust. These trusts are set up to ensure

that injured children can maintain Medicaid benefits since, if the award passed

directly to the petitioner, KM may become ineligible for Medicaid. See, e.g.,

Torres v. Sec'y of Health & Human Servs., No. 09-867V, 2013 WL 2256136, at *3

(Fed. Cl. Spec. Mstr. Apr. 30, 2013) (discussing the benefit of a special needs trust

for injured minors who receive compensation).

On November 2, 2018, the Secretary responded to the petitioner’s

supplemental fees request. The Secretary stated that he left it to the “discretion of

the Special Master to determine the reasonableness of petitioner’s counsel’s

supplemental fee request.” Resp’t’s Resp., filed Nov. 2, 2018, at 1. However, the

Secretary objected to any award of fees or costs relating to the establishment of a

special needs trust, arguing that the creation of the trust is not related to a

proceeding on the petition. Id. at 1-2.

4

On October 31, 2018, the undersigned awarded Ms. Martin interim fees in

the amount of $39,100. This amount represented an “irreducible minimum” of her

fees request and covered all attorney and paralegal fees incurred prior to the March

8, 2018 motion. Interim Fees Decision, issued October 31, 2018, 2018 WL

6241543.

The remaining portions of Ms. Martin’s fees request are now ripe for

adjudication.

* * *

Because Ms. Martin received compensation, she is entitled to an award of

reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the

questions are (1) whether Ms. Martin can be reimbursed for fees her attorney

incurred in the dispute over attorney’s fees, (2) whether Ms. Martin seeks a

reasonable amount of costs for her life care planner, (3) whether Ms. Martin can be

reimbursed for the costs of maintaining a guardianship, and (4) whether Ms.

Martin can be reimbursed for the costs of establishing a special needs trust. Ms.

Martin’s fees and costs are addressed in turn.

I. Attorneys’ Fees

The Federal Circuit has approved the lodestar approach for evaluating the

content of fee requests. Calculating the lodestar is a two-step process. Avera v.

Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). First, a

court determines an “initial estimate … by ‘multiplying the number of hours

reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-

48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may

make an upward or downward departure from the initial calculation of the fee

award based on specific findings. Id. at 1348.

A. Reasonable Hourly Rate

The petitioner requested the same hourly rate for her attorney, Mr. Bolton, as

was found reasonable in the interim fees decision. The undersigned continues to

find the requested rate reasonable for the reasons set forth in the interim decision.

See Interim Fees Decision, issued Oct. 31, 2018, at 5.

5

B. Reasonable Number of Hours

The second factor in the lodestar formula is a reasonable number of hours.

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).

While the vast majority of Ms. Martin’s fee request was addressed in the

October 31, 2018 decision awarding interim fees, Ms. Martin has supplemented

her initial request with a request for $3,600 in fees incurred during the pendency of

the present motion, but subsequent to the judgment on the merits. See Pet’r’s

Mot., filed Oct. 23, 2018. These fees are often referred to as “fees on fees.”

Relying, in part, on Vaccine Rule 10, the Secretary seemed to suggest that

special masters cannot award fees for litigating fees. Resp’t’s Resp., filed Aug. 27,

2017, at 2-4 and 6-7. But, after Ms. Martin filed her October 23, 2018 motion for

supplemental fees, including fees incurred for litigating fees, the Secretary did not

interpose any objection to awarding those fees. In light of the Secretary’s lack of

objection to any specific entries in Mr. Bolton’s bill, the undersigned has reviewed

the billing statement for its reasonableness. See McIntosh v. Sec’y of Health &

Human Servs., 139 Fed. Cl. 238 (2018).

The Federal Circuit has endorsed awards of attorneys' fees for litigation fee

disputes. Schuenemeyer v. United States, 776 F.2d 329, 333 (Fed. Cir.

1985). Special Masters have generally allowed “fees for fees,” albeit with

reductions consistent to maintain the reasonableness of any particular request.

See Turkupolis v. Sec'y of Health & Human Servs., No. 10-351V, 2015 WL

393343, at *4-5 (Fed. Cl. Spec. Mstr. Jan. 9, 2015) (reducing fees for duplicative

and excessive work); Sucher v. Sec'y of Health & Human Servs., No. 07-58V,

2013 WL 5532179, at *18 (Fed. Cl. Spec. Mstr. Sept. 17, 2013) (not compensating

petitioners for time spent litigating an issue for which there was no basis to

litigate); Brown v. Sec'y of Health & Human Servs., No. 09-426V, 2013 WL

2350541, at *2-3 (Fed. Cl. Spec. Mstr. May 6, 2013) (reducing fees for fees by

two-thirds based on two out of three of the primary issues in petitioner's filings

being unreasonable); Garcia v. Sec'y of Health & Human Servs., No. 07-286V,

2011 WL 6941702, at *10 (Fed. Cl. Spec. Mstr. Dec. 13, 2011) (not compensating

an attorney for work necessitated by a problem the attorney created).

A review of the billing entries indicate that all of the individual entries and

the total number of hours billed are reasonable. Accordingly, petitioner is awarded

$3,600 in attorneys’ fees.

6

II. Costs

Ms. Martin seeks reimbursement for $33,549.37 in costs. This includes

routine costs of $400.00 for the filing fee, $81.47 for obtaining medical records,

$193.57 in postage, and $5.00 for the notary. These costs are reasonable and

awarded in full.

The balance of costs comes from (A) an invoice of $14,304.33 for a life care

planner (Nancy Bond), (B) $12,965.00 for costs associated with establishing and

maintaining a guardianship for KM, and (C) $2,000 for costs associated with

creating a special needs trust. These three are evaluated below.

A. Life Care Planner

Like attorneys’ fees, a request for reimbursement of costs must be

reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.

Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable expert fees—such as

the fee for a life care planner—are determined using the lodestar method, in which

a reasonable hourly rate is multiplied by a reasonable number of hours. Caves v.

Sec'y of Health & Human Servs., 111 Fed. Cl. 774, 779 (2013).

The hourly rate charged by petitioner’s life care planner appears reasonable.

However, the number of hours billed for this case does not. In the undersigned’s

experience, a typical life care planner may charge approximately $4,000-$5,000 for

a case of this complexity. Thus, the $14,304.33 invoiced here raises eyebrows.

The life care planner’s entries are often quite vague and make examining the

reasonableness of the number of hours difficult. Professionals who are seeking

reimbursement through the judicial system are expected to create invoices that

contain sufficient detail to allow an effective review of reasonableness. See

Avgoustis v. Shinseki, 639 F.3d 1340, 1344-45 (Fed. Cir. 2011). Although the

professional in Avgoustis was an attorney, who had claimed that the attorney-client

privilege overrode the expectation for detailed invoices, this same standard should

govern invoices life care planners create. However, in this case, Ms. Bond created

very unspecific entries for nearly all of the entries relating to the correspondence.

Representative examples are: “Email from Nancy,” “Emails from and to Dan,” and

“Spoke with Ms. Martin.” As this sample suggests, none of the entries describe the

subject of the communication.

Without knowing the subject of the communication, assessing the

reasonableness of the time spent is challenging. Nevertheless, some insights can

7

be gained by a quick perusal. Ms. Bond’s invoice contains over two hundred

entries, approximately 80% of which refers to correspondence. For this

correspondence, it appears that, with a handful of exceptions, the minimum entry

duration is 0.2 hours. As an example, Ms. Bond charged 12 minutes for leaving a

voicemail “for Dan [Bolton] to call me.” This was not the only such entry, the life

care planner also charged 12 minutes to leave a message for two other people to

call her as well. These time estimates appear excessive and indicate that the life

care planner relied on a minimum time increment that resulted in excessive billing.

See Rasmussen v. Sec'y of Health & Human Servs., No. 91-1566V, 1996 WL

752289, at *2 (Fed. Cl. Spec. Mstr. Dec. 20, 1996) (noting that counsel’s practice

of billing in increments not smaller than a quarter hour could result in overbilling).

Other entries indicate that the life care planner billed for secretarial work,

including the time it took to purchase airfare, to reserve a hotel room, to confirm

the address for the site visit, to seek directions via MapQuest, and to conduct even

more research for her own flights. It is well-established that secretarial work

should not be reimbursed at professional rates. Cf. Bratcher v. United States, 136

Fed. Cl. 786, 796, reconsideration denied, 137 Fed. Cl. 645 (2018) (declining to

reimburse attorneys for work even at paralegal rates when plaintiffs failed to

demonstrate that the work was not “largely clerical or secretarial in nature”).

Furthermore, Ms. Bond expended a non-insubstantial amount of time

researching commonplace costs (e.g., skilled nursing providers, cleaning, hand

controls, and a Bruno seat). The amount of time spent researching these costs

appears excessive. See Manis v. Sec'y of Health & Human Servs., No. 13-732V,

2016 WL 4437959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2016) (finding a $5,580

life care plan excessive, noting that “given life care planners' professional

expertise, the projected costs for certain relatively common items (such as

medications, physical therapy, neurology appointments, and high deductibles)

should be readily available to them, and thus quickly accessible. Life care planners

are expected to have familiarity with such commonplace costs”).

Life care planning contributes to a process by which the parties reliably

estimate future medical expenses that the Vaccine Act authorizes. See Glaser v.

Sec'y of Health & Human Servs., No. 06-764V, 2016 WL 4491493, at *11 (Fed.

Cl. Spec. Mstr. June 6, 2016) (“as the Vaccine Program has matured, the role of

life care planners in assisting parties calculate damages awards has grown, and

made their jobs more complex as well—resulting in their services becoming more

expensive”), decision vacated on reconsideration in non-pertinent part, No. 06-

764V, 2016 WL 4483022 (Fed. Cl. Spec. Mstr. June 29, 2016). However, the

importance, prevalence, and expense of life care planners to the Vaccine Program

8

only emphasizes the importance of a careful review of the billed expenses. Here,

the life care planner’s invoice does not support the conclusion that the number of

hours billed was appropriate. In the undersigned’s estimation, a 35% reduction in

the compensated hours is appropriate and results in a reasonable, if not generous,

award.

B. Guardianship Costs

Ms. Martin also requests $12,965.00 in costs associated with establishing

and maintaining the guardianship for KM. As will be discussed below, the

Secretary does not contend that costs associated with establishing a guardianship

are not reimbursable under the Act. However, the Secretary does argue that all

costs associated with maintaining a guardianship are ineligible. Furthermore, the

Secretary argues that all guardianship costs, regardless of whether they pertain to

establishing or maintaining the guardianship, must be incurred prior to the entry of

judgment to be compensable under the Act.

1. Background Law Regarding Guardianship Requirement

The question of whether costs associated with establishing and maintaining a

guardianship can be compensated under the Vaccine Act has been a lingering

question in the Vaccine Program. As discussed below, different special masters

and judges of the Court of Federal Claims have come to different answers on this

very question. In addition, a recent case decided by Judge Lettow of the Court of

Federal Claims also offers another approach as to how the Vaccine Program may

address the question of guardianship costs going forward. See McCulloch v. Sec'y

of Health & Human Servs., No. 09-293V, 2018 WL 1868584, at *4 (Fed. Cl. Apr.

3, 2018), appeal docketed, no. 2018-2046 (June 6, 2018). In McCulloch, the

special master had awarded petitioner’s attorneys’ fees request, which included

funds for the preparation of an annual guardianship plan, the annual accounting of

the estate, an annual audit fee, and the annual bond premium. Respondent objected

on the basis that these costs were not reimbursable under the terms of the Act.

Judge Lettow agreed with respondent, finding that “the Vaccine Act's terms

specify that reimbursement of attorneys' fees and costs is proper only for those

“incurred in any proceeding on [a Vaccine Act] petition” and that the state

guardianship proceedings were “not themselves proceedings upon a Vaccine Act

9

petition.” 5 Judge Lettow did find, however, that the guardianship costs were

appropriate under 42 U.S.C. § 300aa–15(a)(1)(A) as “reasonable projected

unreimbursable expenses” resulting from the vaccine-related injury. 6

McCulloch will provide a vehicle for the Federal Circuit to interpret this

provision of the Vaccine Act for the first time. Once the Federal Circuit issues a

precedential decision, its interpretation will be binding. See Guillory v. Sec'y of

Health & Human Servs., 59 Fed. Cl. 121, 124 (2003), aff'd, 104 Fed. Appx. 712

(Fed. Cir. 2004). Until the Federal Circuit speaks, other previous adjudications by

special masters and judges of the Court of Federal Claims serve as persuasive

authority for deciding the case here. See Hanlon v. Sec'y of Health & Human

Servs., 40 Fed. Cl. 625, 630 (1998), aff'd, 191 F.3d 1344 (Fed. Cir. 1999).

As the respondent notes, judges of the Court of Federal Claims have found

the statutory language to preclude awards for attorneys’ fees and costs for the

“myriad legal implications of establishing or administering an estate.” Siegfried v.

Sec'y of Health & Human Servs., 19 Cl. Ct. 323, 325 (1990). In another case

concerning guardianship costs, a judge of the claims court made clear that just

because an expense was incurred but for a vaccine injury did not make the expense

compensable. Mol v. Sec'y of Health & Human Servs., 50 Fed. Cl. 588, 591

(2001); see also Lemon v. Sec'y of Dep't of Health & Human Servs., 19 Cl. Ct.

621, 623 (1990) (disallowing fees related to the administration of the estate of

petitioner’s child).

Part of the confusion arises out of the ambiguity as to whether creating a

guardianship is statutorily required. The Vaccine Act notes that petitions relating

to an alleged vaccine injury suffered by a minor or disabled person must be

brought by their legal representatives. 42 U.S.C. § 300aa-11(b)(1)(a). The statute

defines a legal representative as “a parent or an individual who qualifies as a legal

guardian under State law.” 42 U.S.C. § 300aa-33(2). As noted by Judge Bruggink

in Spates v. Sec'y of Health & Human Servs., there is some apparent ambiguity as

to “whether a parent is a legal representative per se, irrespective of state law, or

whether a parent must simultaneously qualify as a legal guardian under state law to

5

As noted previously, the Secretary appears to take a different position here, arguing that

the establishment of the guardianship was a proceeding on the petition. Resp’t’s Br., filed Aug.

27, 2018, at 5.

6

With amazing prescience, Ms. Martin originally attempted to modify the merits

judgment. See Pet’r’s Mot., filed Feb. 19, 2018. However, she later filed a motion to strike her

motion. Pet’r’s Mot., filed Mar. 5, 2018. Ms. Martin has not renewed her motion to amend the

merits judgment.

10

be a legal representative under the Act.” 76 Fed. Cl. 678, 681 (2007). While some

cases have wrestled with this question, the Federal Circuit has not offered any

guidance on this specific issue. See, e.g., Taylor v. Sec'y of Health & Human

Servs., No. 16-1382V, 2017 WL 6523675, at *3 (Fed. Cl. Spec. Mstr. Oct. 30,

2017).

This ambiguity is not necessarily bad. Because one interpretation of section

33(2) permits a parent of a minor to prosecute a petition without first being

appointed a guardian under state law, special masters have adjudicated many cases

with a parent as a petitioner. For example, in the vast majority of the more than

4,000 autism cases, the petitioner was a parent who had not gone to probate court

to be appointed guardian. Because the autism cases were not successful, the

thousands of parents avoided the time, trouble, and expense of bringing a probate

court action.

However, in cases in which parents receive compensation for their child, the

alternative interpretation of section 33(2) comes into play. Because it is at least

arguable that parents can act as petitioners only when a process under state law

recognizes them as guardians, the Secretary requires, as part of a stipulation, that

parents agree to be appointed guardians whom courts supervise. 7 (For the

language of the stipulation in the present case, see footnote 2 above.) The

involvement of the state probate court makes much more sense in compensated

cases. The probate court can oversee the actions of the parents / guardians to

ensure funds are used for the benefit of the injured child / ward. Importantly, for

the purpose of this proceeding, the Secretary has taken the position that the Act

requires the establishment of legal guardianship to bring the claim. Resp’t’s Br.,

filed Aug. 27, 2018, at 5-6.

Since the Secretary has chosen to impose these guardianship costs as a

condition to an award based upon a stipulation, special masters have awarded

guardianship costs in the form of attorneys’ fees over the years. In doing so,

special masters have often stated that doing so was mere common sense. See, e.g.,

Finet v. Sec'y of Health & Human Servs., No. 03-348V, 2011 WL 597792, at *3

(Fed. Cl. Spec. Mstr. Jan. 31, 2011) (“This trend of using common sense to award

guardianship costs when they are mandated as a sine qua non of receiving a

7

Like typical litigation, most cases in the Vaccine Program, including this one, resolve

via an informal resolution between the parties. In the context of negotiations, the parents /

petitioners might conceivably object to the Secretary’s demand that they agree to be appointed

guardians. However, the undersigned is not aware of any instances in which the Secretary has

bargained away a demand for guardianship.

11

vaccine damages award should continue”); Cansler v. Sec'y of Health & Human

Servs., No. 09-596V, 2011 WL 597791, at *3 (Fed. Cl. Spec. Mstr. Feb. 2, 2011)

(“it is unconscionable to request, negotiate or demand [a guardianship] for the

recipient of the vaccine funds and then shift the costs to the parent. . . .

[R]espondent's position on this close issue is shortsighted and threatens their stated

policy, a very good policy, of protecting the minor's vaccine award”) (citing

Ceballos v. Sec'y of Health & Human Servs., No. 99-97V, 2004 WL 784910 (Fed.

Cl. Spec. Mstr. Mar. 25, 2004)).

While the Secretary states that a guardianship is required “to bring the

claim,” Resp’t’s Br., filed Aug. 27, 2018, at 5, the Secretary has not, in the

undersigned’s experience, often filed a motion to dismiss a Vaccine Petition for

lack of standing. Cf. Bernhardt v. Secʼy of Health & Human Servs., 82 Fed. Cl.

287 (2005) (the Secretary questioned whether a non-custodial parent could file a

petition). The Secretary’s inaction has contributed to a “practice [in which] this

requirement is not strictly enforced.” Resp’t’s Br. at 5. This is not necessarily a

bad thing; the Secretary’s exercise of discretion in not filing motions to dismiss

seems sensible insofar as a motion to dismiss would probably prompt petitioners to

file state court actions to create guardianships, incur fees, and ultimately recoup

those fees from the Vaccine Injury Trust Fund.

Here, Ms. Martin’s case followed a typical pattern in that she became her

child’s guardian only after she was awarded compensation from the Vaccine

Program, and she now seeks reimbursement for the attorneys’ fees and costs

associated with the guardianship. The undersigned ordered the parties to brief this

issue. The parties’ arguments are summarized in turn.

2. The Secretary’s Arguments

The Secretary urges the undersigned to construe narrowly the portion of the

Vaccine Act that authorizes reimbursement of fees and costs. In support of his

argument, the Secretary relies heavily on the Supreme Court’s instruction that fee-

shifting statutes and statutes waiving sovereign immunity must be narrowly

construed in favor of the presumption that Congress did not intend to waive

sovereign immunity and that parties will pay their own attorney’s fees. Resp’t’s

Br., filed Aug. 27, 2018, at 2 (citing Baker Botts L.L.P. v. ASARCO LLC, 135 S.

Ct. 2158, 2164 (2015); Lane v. Pena, 518 U.S. 187, 192 (1996); and Nantkwest,

Inc. v. Iancu, 898 F.3d 1177, 1186 (Fed. Cir. 2018)). Accordingly, the Secretary

asks the undersigned to interpret the language of the Vaccine Act strictly and to

find as compensable only those costs that have been “necessarily incurred in

connection with resolving the merits of a petition for compensation filed under the

12

Act, through entry of final judgment on the underlying claim.” Resp’t’s Br., filed

Aug. 27, 2018, at 3.

Applying the statutory interpretation offered by the Secretary to the issue of

guardianship costs and Ms. Martin’s case specifically, the Secretary acknowledges

that, generally speaking, costs associated with establishing a guardianship are

reimbursable since the state guardianship proceeding would be part of the

proceedings on the petition. Resp’t’s Br., filed Aug. 27, 2018, at 5. 8 However, the

Secretary argues that, to the extent Ms. Martin incurred costs associated with

establishing the guardianship after the date judgment entered, those costs would

not be reimbursable since entry of judgment marks a point at which costs

subsequently incurred are not compensable under the Vaccine Act. Id. at 6

(“However, insofar as the final judgment on the underlying merits concludes the

proceedings on the petition, any guardianship costs incurred after that point in time

would not be reimbursable”). 9 Accordingly, the Secretary’s position appears to be

that costs associated with establishing a guardianship are compensable so long as

those costs were incurred prior to judgment.

8

By recognizing that costs associated with establishing an estate are reimburseable, the

Secretary has taken a position different from holdings from judges of the Court of Federal

Claims (or its predecessor). For example, in Siegfried, the Claims Court stated: “The [Vaccine]

Act does not provide attorney fee awards to cover the myriad legal implications of establishing

or administering an estate.” 19 Cl. Ct. at 325. Siegfried, in turn, was the primary reason that

Mol disallowed costs associated with establishing a guardianship. 50 Fed. Cl. at 588. However,

neither Siegfried nor Mol discussed the significance of sections 11(b)(1)(a) (requiring legal

representatives to bring actions for injuries a minor suffers) and 33(2) (defining a legal

representative).

Although the Secretary’s position in Ms. Martin’s case differs from the outcome of

Siegfried and Mol, the Secretary’s current argument is consistent with how he argued the motion

for review in McCulloch. There, “the reimbursement of guardianship costs already incurred

[was] not challenged by the government.” McCulloch, 137 Fed. Cl. at 600.

9

It appears that Ms. Martin may have incurred some of the costs associated with

establishing the guardianship after the entry of judgment for Ms. Martin’s petition. See Pet’r’s

Mot., filed Mar. 8, 2018, appd’x 3 at 3 (noting costs in November 2017 when judgment entered

October 31, 2017). Even though the Secretary took the position that costs incurred following

the entry of judgment are not compensable, he did not specifically make the argument that Ms.

Martin’s costs for establishing the guardianship were thus not compensable, leaving it to the

undersigned to make this inference. As a result, the factual question of when Ms. Martin

incurred costs in relation to the date of judgment is underdeveloped in the record. However,

because the decision here does not turn on this question, additional fact-finding is not necessary

at this time.

13

However, the Secretary also argues that costs paid either before or after the

entry of judgment cannot be reimbursed under the Act when those costs are related

to maintaining the guardianship in future years. The Secretary takes the position

that Ms. Martin’s prepayment of future years’ guardianship costs—costs required

to maintain the guardianship going forward—have not been “incurred” since they

are speculative future costs. Accordingly, the Secretary argues, they are not

appropriate for compensation under his reading of 42 U.S.C. § 300aa-15(e). Id.

3. Ms. Martin’s Arguments

Ms. Martin contends that, as an initial matter, the Secretary’s reliance on

Baker Botts to narrowly construe the language of the Vaccine Act ignores the fact

that the Vaccine Act provides a compensation program wherein all reasonable

attorneys’ fees and costs are reimbursable. Pet’r’s Br., filed Sept. 10, 2018, at 6-7.

In other words, the petitioner contends that a default towards the American Rule

when interpreting the language of the Vaccine Act is inapposite since the Vaccine

Act did not contemplate petitioners shouldering the burden of any of their

reasonable costs related to bringing petitions with a reasonable basis and good

faith. In this way, comparing the Vaccine Act to other areas of federal law would

be, in the petitioner’s opinion, a mistake.

Ms. Martin also rebuts the Secretary’s contention that the costs in question

have not been “incurred.” The petitioner argues that the decision and judgment

entered into this case specifically directed her to establish a conservatorship for

KM and that that is exactly what she did. Id. at 7-8. By prepaying the costs for the

guardianship bond, she claims that she attempted to guarantee that KM would

receive her compensation, uninterrupted, as provided in the decision and judgment.

Id.

4. Analysis

A foundational question in this case is whether the undersigned should give

effect to the plain meaning of the Vaccine Act or whether, as the Secretary argues,

canons of statutory construction require that the Act be construed strictly in the

Secretary’s favor.

The Secretary offers two arguments in support of his position that the statute

must be narrowly construed. The first is based on the principle that the sovereign

is immune and the second recognizes the longstanding tradition of the American

Rule regarding attorneys’ fees. The Secretary argues that, as a matter of well-

established canons of statutory construction, the Vaccine Act must be interpreted

14

by the undersigned with a presumption in favor of each of these default rules.

However, neither is persuasive.

The Secretary is correct that “a waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in statutory text.” Lane, 518

U.S. at 192. Put another way, absent clear language, waivers of sovereign

immunity are construed narrowly. United States v. Williams, 514 U.S. 527, 531

(1995).

On the other hand, courts should not narrow Congress’s waiver of sovereign

immunity beyond Congress’s objectives. Ed A. Wilson, Inc. v. Gen. Servs.

Admin., 126 F.3d 1406, 1408 (Fed. Cir. 1997) (holding that once it has been

established that Congress has waived immunity, the courts should not assume the

authority to limit the waiver that Congress has established); Jones v. Brown, 41

F.3d 634, 638 (Fed. Cir. 1994) (quoting United States v. Kubrick, 444 U.S. 111,

117–18 (1979)). In Jones, the Federal Circuit declined to narrowly construe a

statute authorizing fees, the Equal Access to Justice Act, because the statute

constituted an “unequivocal expression of the government’s consent to be sued”

with respect to the contested fees and costs. 41 F.3d at 634. Instead, Jones relied

on the plain meaning of the statute, though in doing so it considered the context

surrounding the passage of the disputed Act. Id. at 640. Accord Brown v.

Gardner, 513 U.S. 115, 118 (1994) (“the meaning of statutory language, plain or

not, depends on context”). 10

The Vaccine Act creates a compensation program that waives sovereign

immunity. See 42 U.S.C. § 300aa-12(b) (identifying the Secretary of Health and

Human Services as the respondent); cf. Schumacher v. Secʼy of Health & Human

Servs., 2 F.3d 1128, 1135 n.6 (Fed. Cir. 1993) (indicating that Congress intended

the government to pay compensation to parents who had filed a lawsuit against the

manufacturer of a drug that allegedly made their child susceptible to adverse

reactions to other chemical substances). Thus, Congress has made the appropriate

waiver and to narrow it beyond the plain meaning of the Vaccine Act, by

construing the Act in favor of the Secretary, would require the undersigned to

intrude on Congress’s prerogatives.

The Secretary also argues that the Vaccine Act must be construed with a

presumption towards the longstanding tradition of the American Rule for

10

While Jones interpreted a fee-shifting statute, the Equal Access to Justice Act, Jones

did not discuss the American rule that requires litigants to pay their own attorneys’ fees and

costs.

15

attorneys’ fees and costs. Under the American Rule, parties pay their own

attorneys’ fees and costs. Similarly, any shift from the default of the American

Rule must be the result of “specific and explicit provisions” contained in the statute

that demonstrate Congress intended to deviate from the default state of affairs.

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 260 (1975). As the

Supreme Court recently noted, statutes that invade the common law should be read

with a presumption favoring the retention of long-established and familiar legal

principles. Baker Botts, 135 S. Ct. at 2169.

However, as the Federal Circuit recently restated en banc, in passing the

Vaccine Act, “Congress specifically and explicitly authorized the award of

attorneys' fees.” Nantkwest, 898 F.3d at 1186. By doing so, the Federal Circuit

noted, the Vaccine Act “displace[d] the American Rule.” Id. (citing Sebelius v.

Cloer, 569 U.S. 369, 380 (2013)). Accordingly, the only question here is whether

prepayment of future guardianship costs is compensable under a plain reading of

the statute. Cf. Nantkwest, 898 F.3d at 1186 (interpreting Cloer to hold that once it

was determined that Congress displaced the American Rule, “the only question for

the Court was whether attorneys' fees could be recovered for untimely petitions”).

Proceeding in this manner, as with any question of statutory interpretation,

the analysis begins with the language of the statute itself. See, e.g., United States

v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). The Act provides that

compensation for attorneys’ fees must be limited to “reasonable attorneys’ fees,

and . . . other costs, incurred in any proceedings on such petition.” 42 U.S.C. §

300aa-15(e)(1). Thus, after petitioners are found entitled to an award of their

attorneys’ fees and costs, the Vaccine Program will award those costs that are (1)

incurred, (2) in a proceeding on the petition, and (3) are reasonable. 42 U.S.C. §

300aa-15(e). The question at bar is whether the costs associated with KM’s

guardianship meet these three requirements.

5. Application

The present question is complicated by the different costs in consideration as

well as by the fact that the Secretary’s position regarding those costs are a function

of when the costs were incurred. For the purposes of clarification, the various

costs and the Secretary’s position are restated here:

16

Item Amount Respondent’s Position

on Compensability

Fee for Attorney Abigail Peoples for Compensable, as long

establishing the guardianship $875.00 as incurred prior to

judgment

Fee for filing for guardianship Compensable, as long

$120.00 as incurred prior to

judgment

Cost for the first year of the Compensable, as long

guardianship bond $1,315.00 as incurred prior to

judgment

Cost for future years’ guardianship Not compensable

bond $10,655.00 under any

circumstances.

These costs can be divided into those costs related to establishing the

guardianship (the first three) and maintaining the guardianship (the fourth). The

costs can also be analyzed to the extent that it was paid prior to or after judgment.

For each of these costs, the undersigned will evaluate whether the cost meets the

three statutory requirements for compensation.

Incurred. As exhibited by the check entered into the record, Ms. Martin has

paid the costs for establishing and maintaining the guardianship until KM reaches

the age of 18. See Pet’r’s Mot., filed Mar. 8, 2018, appd’x 3 at 9. Thus, the issue

turns on the legal question of what “incur” means.

In a case interpreting a since repealed section of the Vaccine Act, the

Federal Circuit defined “incur.” “To ‘incur’ expenses means to pay or become

liable for them.” Black v. Sec'y of Health & Human Servs., 93 F.3d 781, 785 (Fed.

Cir. 1996). Thus, since Ms. Martin has paid the expense, it appears that she has

incurred it.

Despite the seemingly clear language of the Federal Circuit in Black, the

Secretary argues here that Ms. Martin has not incurred an expense with regards to

these guardianship costs because when she made the payment she was not yet,

according to the Secretary, legally liable for that cost. Resp’t’s Br., filed Aug. 27,

17

2018, at 2-3. To support this interpretation of what it means to “incur” an expense,

the Secretary cites the Black decision, but from the Court of Federal Claims. In

this decision, the judge noted that an expense is incurred “at the moment one

becomes legally liable, not at the moment when one pays off the debt, nor at the

moment when one decides that an expense will become necessary one day in the

future.” Black v. Sec'y of Health & Human Servs., 33 Fed. Cl. 546, 550 (1995),

aff'd, 93 F.3d 781 (Fed. Cir. 1996). While this passage offers some support to the

Secretary’s argument, the Secretary has not explained why the Federal Circuit’s

definition of incurred should not control. 11

In addition, the parties must have contemplated that Ms. Martin would

maintain her status as guardian of KM. The Secretary promised to purchase an

annuity that would provide a monthly benefit to KM and these payments from the

insurance company would be made payable to Ms. Martin “as the court-appointed

guardian/conservator of the estate of KM.” Stipulation ¶ 10.

On the petition. A compensable cost must also be incurred “on the petition.”

The Secretary’s briefs appear to conceive of this requirement as having two parts.

First, the Secretary argues that a cost incurred on a petition must be clearly

contemplated by both the Vaccine Act and the Vaccine Rules. Resp’t’s Br., filed

Aug. 27, 2018, at 5-6. Second, the Secretary argues that a cost incurred on a

petition must be incurred prior to the date judgment enters. Id. at 6. These two

components of the Secretary’s argument, as they relate to Ms. Martin’s motion, are

addressed in turn.

As the Secretary concedes, “both the Act and the Rules clearly contemplate

that a legal guardianship will need to be established at some point during the

proceedings on the petition” and, accordingly, the costs associated with

establishing that guardianship are reimbursable. Id. at 5. Nonetheless, the

Secretary still argues that future guardianship costs are not proceedings on the

petition.

Once the Secretary concedes that establishing the guardianship is a

proceeding on the petition, it seems to follow that maintaining the guardianship is

11

The Secretary’s reliance on a somewhat misleading quote from the Court of Federal

Claims while omitting the binding language from the Federal Circuit that appears to be adverse

to the Secretary’s position is concerning, especially because the undersigned alerted the

Secretary’s counsel about the Federal Circuit’s opinion in Black in a status conference held on

July 24, 2018.

18

also part of the petition. After Ms. Martin places herself under the jurisdiction of

probate court to become KM’s guardian, the law in North Carolina requires her to

do certain things, such as obtain an annual bond. “Before issuing letters of

appointment to a . . . guardian of the estate the clerk shall require the guardian to

give a bond payable to the State.” N.C. Gen. Stat. 35A-1231(a). 12 Ms. Martin also

presented a letter from the attorney who represented them in the guardianship

proceeding, Abigail E. Peoples, and who cited relevant law from North Carolina.

Attorney People concluded that “Since the North Carolina courts have made this

bond a requirement in order for the guardianship to exist, I believe it is only proper

for HHS to pay the bond premium.” Pet’r’s Mot., filed Mar. 8, 2018, appd’x 3

at 2. North Carolina’s requirement for a bond makes this case distinguishable from

Barrett v. Sec'y of Health & Human Servs., No. 09-389V, 2014 WL 2505689, at

*6-7 (Fed. Cl. Spec. Mstr. May 13, 2014), in which a special master found that a

petitioner had failed to demonstrate that expenses associated with periodic filings

to the Pennsylvania Orphans’ Court were legally required. Accordingly, the

special master in Barrett declined to reimburse the petitioner for the associated

expenses.

The Secretary has not presented any argument as to how Ms. Martin could

avoid complying with the law requiring the bond. Moreover, it would seem that

the Secretary would want Ms. Martin, as a matter of policy and as a matter of her

compliance with the terms of the judgment, to comply with the state laws

surrounding guardianship. The Secretary does not reconcile how the same exact

expense can be “on the petition” on the day before judgment but not be the day

after.

As for the Secretary’s argument that any expense following the date of

judgment is, per se, not a cost “incurred on the petition,” the argument is

inconsistent with the stipulation. The stipulation stated: “Petitioner represents that

she presently is, or within 90 days of the date of judgment will become, duly

authorized to serve as guardian/conservator of KM’s estate under the laws of the

State of North Carolina.” Stipulation ¶ 16. By allowing Ms. Martin 90 days to

become KM’s guardian, the parties anticipated that Ms. Martin might take some

actions after the date of judgment that are part of the process for receiving

compensation through the Vaccine Program. Ms. Martin should not be penalized

12

Congress, presumably, was aware that state law required guardians to post bonds when

it enacted the Vaccine Act. See Fitzgerald v. Dep’t of Homeland Security, 837 F.3d 1346, 1355

(Fed. Cir. 2016).

19

for doing something the stipulation permitted her to do — become guardian after

the judgment.

The date of judgment has not been used to identify costs “incurred on the

petition.” During briefing, the undersigned directed the Secretary to address

whether attorneys’ fees relating to a motion for fees and costs that were incurred

after the date of judgment were compensable based on the Secretary’s proffered

interpretation of what constitutes a cost “on the petition.” In response, the

Secretary took the position that “a narrow construction of Section 15(e), as

required by Baker Botts, would not authorize reimbursement of fees and costs

incurred in connection with a motion for fees and costs, either before or after entry

of judgment on the merits.” Resp’t’s Br., filed Aug. 27, 2018, at 6-7. In other

words, the Secretary’s interpretation of the Act forecloses reimbursement of fees

incurred by petitioners on motions for fees and costs. As the Secretary

acknowledged, and as reviewed in section I.B, above, fees on fees have been

awarded in the Vaccine Program since its inception and the Secretary has not even

taken the step of challenging Ms. Martin’s request for these fees here. See

Resp’t’s Resp., filed Nov. 2, 2018, at 1-2. The undersigned is disinclined to

interpret the words of the Vaccine Act in a matter that runs contrary to decades of

practice in this Program including the Secretary’s own practice in this proceeding.

In addition, the Secretary’s argument that the date of judgment marks a

bright line by which all subsequent costs are now “off the petition” seems to

require the conclusion that costs incurred prior to filing the petition are similarly

“off the petition,” regardless whether those costs were clearly contemplated by the

Act and relate to the proceeding. However, the Secretary finds these types of costs

to be compensable when they are reasonable. Resp’t’s Br., filed Aug. 27, 2018, at

6-7. The Secretary does not explain how a cost that is incurred prior to filing of a

petition can be “on the petition” when costs incurred after the entry of judgment

are, according to the respondent, necessarily, “off the petition.”

In short, the undersigned agrees with the Secretary’s interpretation that for a

cost to be “on a petition,” the Vaccine Act or the Vaccine Rules must contemplate

the item. Because Ms. Martin’s establishment of the guardianship clearly meets

that statutory requirement, the undersigned finds that, necessarily, the costs

associated with maintaining the guardianship are similarly “on the petition.”

Furthermore, the undersigned declines to adopt the Secretary’s argument that the

cost must also occur, by law, prior to the entry of judgment. For these reasons, the

undersigned finds that the costs of establishing and maintaining Ms. Martin’s

guardianship are costs incurred on her Vaccine Program petition.

20

Reasonable. Of course, to incur a cost on a proceeding is not sufficient to

establish that the cost is compensable by the Vaccine Program. Before any cost is

reimbursed from the Vaccine Trust Fund, a special master or judge of the Court of

Federal Claims must conclude that the cost was reasonable. See McIntosh, 139

Fed. Cl. at 248. This requirement of the statute provides a robust line of protection

against petitioners abusing the Vaccine Program by incurring excessive expenses

or expenses not appropriate under the Act.

Ms. Martin’s request for costs she incurred to maintain the guardianship

totals $10,655.00. Interestingly, the Secretary does not appear to contest the

reasonableness of the expense explicitly. The Secretary describes the cost as

“modest,” Resp’t’s Br., filed Feb. 27, 2018, at 7, essentially conceding that they

are not excessive.13

It is true, as the Secretary argues, that these prepayment costs are speculative

insomuch as they may never be necessary. They are prepayments of a cost. KM

may move out of North Carolina to a state that does not require a guardianship

bond. 14 KM may also die before she reaches the age of 18. In opposing payments

for guardianships, the Secretary has argued that the speculative nature of the cost

creates the potential for a windfall for the petitioner in the case she moves or dies.

Resp’t’s Br., filed Feb. 27, 2018, at 7 (“if petitioner ever moves outside of North

Carolina, the alleged future costs may no longer be necessary, resulting in a

windfall for petitioner”); McCulloch v. Sec'y of Health & Human Servs., No. 09-

293V, 2017 WL 7053992, at *12 (Fed. Cl. Spec. Mstr. Dec. 19, 2017), aff'd in part

on other grounds, 137 Fed. Cl. 598 (2018) (“Respondent argues that if A.M. passes

away before the estimated date, it would potentially create a windfall for

petitioner.”) In this way, Ms. Martin’s decision to prepay the costs may be argued

to be an unreasonable expense that is, thusly, not compensable.

However, the undersigned does not find that the fact that these costs were a

prepayment makes the expense unreasonable. As an initial matter, the undersigned

13

Even more, he notes that Ms. Martin can pay for these costs out of the money received

in her award for compensation. Id. This, of course, is not what the compensation KM received

was for. Arguing that the compensation be used to pay for the guardianship expense is a

somewhat callous line of reasoning that discredits KM’s need and entitlement for the

compensation she was awarded. It treats the award as somehow granting more to Ms. Martin

than she was legally entitled to, something the undersigned sees no evidence to support.

14

The Secretary has not identified states that do not require a guardian to post a bond.

21

recognizes that there is some risk that KM may not require the guardianship bonds

due to the “vagaries of life.” Barrett, 2014 WL 2505689, at *5. But, it makes little

sense that the answer to these low probability events is to shift the cost of the high

probability event—KM’s need for the guardianship—entirely onto the petitioner.

Even more, the petitioner has taken reasonable steps to try to prevent any

such “windfall” from occurring.15 The monies for the future years’ guardianship

bond costs have been paid to the Bar Plan Surety and Fidelity Company with a

note that any overages in the bond fee, due to KM’s death or relocation, be

remitted to the Secretary. Pet’r’s Mot., filed Mar. 8, 2018, appd’x 3 at 8. While

the Secretary protests that he does not have an effective way of enforcing this

arrangement, see Resp’t’s Mot., filed Aug. 27, 2018, at 6, it seems that the

Secretary could be considered a third-party beneficiary of the existing contract or

the Secretary could have participated in the process by which Ms. Martin became

the guardian. Nonetheless, Ms. Martin’s attempt to address the Secretary’s

concern constitutes a reasonable effort. While this arrangement may not be

perfect, the perfect should not be the enemy of the good.

For the aforementioned reasons, the undersigned finds that those costs for

establishing and maintaining KM’s guardianship that were actually paid by the

petitioner are costs incurred by her on the petition and that they were reasonable

expenditures. Based on the plain meaning of the Vaccine Act, they are thus

compensable costs.

Although the undersigned finds that the costs of maintaining a guardianship

are reimbursable without consideration of the statutory and legislative context of

the Vaccine Act, consideration of this context is nonetheless an important element

of the analysis. Cloer, 569 U.S. at 380. In Cloer, all but two members of the

Supreme Court found that the Secretary’s position in the case was “inconsistent

with the goals of the fees provision itself.” Id. More specifically, the Court found

that the Secretary had failed to explain why Congress would have intended to

promulgate a statute that would have discouraged counsel from representing

certain difficult cases, which would have been the result of the Secretary’s

proffered interpretation of the Act. Id. Based on the consideration given to the

purposes of the Act in Cloer, the undersigned also finds it appropriate to visit

briefly that issue here to the extent it may inform the present question. See also

Saunders v. Sec'y of Health & Human Servs., 25 F.3d 1031, 1036 (Fed. Cir. 1994)

15

The amount of the bond for maintaining the guardianship is $10,655.00. Even if Ms.

Martin were to avoid the costs of paying the bond, her apparent “windfall” would remain, in the

Secretary’s word, “modest.”

22

(noting, in the context of the Vaccine Act, that a court should try to construe the

Act in a way which is consistent with the intent of Congress).

The Vaccine Act was enacted to provide generous compensation to

meritorious claimants. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 247 (2011)

(“Congress sought to provide generous compensation to those whom vaccines

injured.”) (citing H.R. Rep., at 5, 24, U.S. Code Cong. & Admin. News, 1986, at p.

6346, 6365); see also Cloer v. Sec'y of Health & Human Servs., 654 F.3d 1322,

1326 (Fed. Cir. 2011) (“the Vaccine Program was intended to provide relative

certainty and generosity of compensation awards in order to satisfy petitioners in a

fair, expeditious, and generous manner”) (internal citations omitted), aff’d, 569

U.S. 369 (2013). To achieve this objective, Congress also recognized the

importance of effective legal representation, which is why reasonable attorneys’

fees and costs are awarded when a claim is supported by reasonable basis and is

brought in good faith. See 42 U.S.C. § 300aa-15(e); Saunders, 25 F.3d at 1036

(noting that a secondary purpose of the Act is to ensure that claimants have access

to a readily available and competent bar to prosecute their claims).

Of course, this generosity is not unbound and remains limited by the

restrictions imposed by the statute itself. Griglock v. Sec'y of Health & Human

Servs., 687 F.3d 1371, 1376 (Fed. Cir. 2012) (“Thus, the Vaccine Act provides a

generous compensation program, but with limits, including the statute of

limitations, to that generosity”). Nonetheless, within the bounds of the statutory

scheme laid out by Congress, it appears Congress’s objective was to provide

compensation generously, to shift the petitioners’ costs of obtaining compensation

onto the government, and to recognize and account for the importance of effective

representation in bringing these challenging cases.

In case any ambiguity exists regarding Congress’s intentions for what costs

associated with a petition the petitioners themselves would be personally

responsible for, the Vaccine Act explicitly prohibits attorneys from charging

petitioners any fees for services in connection with a petition in excess of that

amount awarded through the Program. 42 U.S.C. § 300aa-15(e)(3) (“no attorney

may charge any fee for services in connection with a petition filed under section

300aa-11 of this title which is in addition to any amount awarded as compensation

by the special master or court”). Thus, it would appear that Congress did not

intend for meritorious petitioners to be responsible for any of their reasonable fees

or costs related to services provided in connection with a petition. In the

undersigned’s opinion, the creation of the guardianship and the prepayment of the

bond costs for that guardianship are services provided to KM in connection with

her petition. Accordingly, the interpretation of the Vaccine Act proffered by the

23

Secretary appears directly at odds with the overall objectives of the Program as

well as the statutory context of the section in dispute.

C. Special Needs Trust

In her supplemental fees petition, Ms. Martin also requested reimbursement

of $2,000 associated with creating a special needs trust for KM. As noted before,

these trusts are created for the purpose of allowing petitioners to retain certain

Medicaid benefits. However, in contrast to guardianship costs, neither the Vaccine

Act, the stipulation to which the parties had agreed, nor the undersigned’s decision

on that stipulation, contemplated the creation of a special needs trust. Accordingly,

the cost is not compensable under Section 15(e) of the Vaccine Act since it is not a

proceeding on the petition. See also J.R. v. Sec’y of Health and Human Servs.,

No. 16-0813V, 2018 WL 5629723, at *2 (Fed. Cl. Spec. Mstr. Sept. 28, 2018)

(finding costs associated with the creation of a special needs trust to be

unreimbursable for these same reasons and noting two other decisions coming to

the same conclusion).

* * *

For the aforementioned reasons, petitioner is awarded:

A lump sum of $26,542.85 in the form of a check made payable to

petitioner and petitioner’s attorney, Dan Bolton, III.

These amounts represents reimbursement attorneys’ fees and other litigation

costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for

review filed pursuant to RCFC Appendix B, the clerk of the court is directed to

enter judgment herewith.

s/Christian J. Moran

Christian J. Moran

Special Master

24