Dasilva v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: October 23, 2020

* * * * * * * * * * * * * UNPUBLISHED

MONICA DASILVA, *

* No. 18-1282V

Petitioner, *

v. * Special Master Gowen

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs; Respondent’s

AND HUMAN SERVICES, * Objection to Reasonable Basis;

* Influenza (Flu); Necrotizing Myopathy;

Respondent. * Statute of Limitations; Equitable Tolling;

* * * * * * * * * * * * * Mental Incapacity; Physical Incapacity.

Judson T. Pitts, Tycksen & Shattuck, LLC, Draper, UT, for petitioner.

Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On August 23, 2018, Monica DaSilva (“petitioner”), acting pro se, filed a petition for

compensation in the National Vaccine Injury Compensation Program.2 Petition (ECF No. 1).

On July 10, 2020, petitioner filed a motion for final attorneys’ fees and costs. For the reasons

discussed below, I award $21,404.65 in reasonable attorneys’ fees and costs.

I. Procedural History

Petitioner alleged that as a result of receiving an influenza (“flu”) vaccination on October

17, 2014, she developed polymyositis, inclusion body myositis, and/or acute necrotizing

myopathy with residual symptoms lasting for more than six months. Id. at ¶¶ 2-5. Petitioner

also submitted limited medical records which reflected her presentation for medical treatment in

1

Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a

reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of

Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the

opinion will be available to anyone with access to the Internet. Before the opinion is posted on the court’s

website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:

(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that

includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of

privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the

opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the

court’s website without any changes. Id.

2

The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et

seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa

of the Act.

November 2014. ECF No. 1, Attachments 2-20 (subsequently stricken for failure to meet the

Vaccine Guidelines, pursuant to Order issued January 7, 2019 (ECF No. 21)).

During an initial status conference, I discussed that the petition seemed to be filed

“approximately ten months outside of” the statute of limitations period. Scheduling Order filed

September 18, 2018, ECF No. 8. Petitioner confirmed that this was true but requested an

exception to the statute of limitations due to the severity of her injury, thus invoking the doctrine

of equitable tolling. Id. Respondent supported dismissal of the claim and was ordered to file a

formal motion to that effect. Id. Petitioner was ordered to seek counsel to represent her in the

claim, including filing of a response to the motion to dismiss. Id.

On October 10, 2018, respondent filed a motion to dismiss the petition. Resp. Mot. (ECF

No. 9). Respondent opposed the application of equitable tolling based on mental and/or physical

incapacity to vaccine injury claims generally and also disagreed that petitioner had made that

showing in her particular case. Respondent noted that his position was based on the “limited

medical records that were filed with the petition” and requested that petitioner file all records

required by 42 U.S.C. § 300aa-11(c)(2) and Vaccine Rule 2(c)(2). Resp. Mot. at n. 1.

On February 6, 2019, attorney Mr. Judson Pitts was substituted as petitioner’s counsel.

ECF Nos. 18, 20. The Court struck the medical records accompanying the pro se petition (ECF

No. 1 - Attachments 1-20), her affidavit (ECF No. 14), and her response to the motion to dismiss

(ECF No. 19) for not complying with the Vaccine Guidelines. ECF No. 21. The Court also

struck additional medical records filed by petitioner’s counsel (ECF No. 22, ECF No. 23 –

Attachment 1) for the same issues. ECF No. 28. On February 22, 2019, petitioner refiled her

response to the motion to dismiss. Pet. Response (ECF No. 23).

On March 25, 2019, respondent filed a reply. Resp. Reply (ECF No. 24). Respondent

noted that many of the medical records dated from both before and after the vaccination at issue

remained outstanding and: “For the purposes of petitioner’s claim that she was incapacitated

through at least August 23, 2015, the dearth of medical records dated from March 18 – August

23, 2015, is particularly relevant.” Id. at n. 5.

During a status conference with petitioner and both parties’ counsel, I discussed that it

was “crucial that petitioner file all medical records and other evidence supporting her claim.”

Scheduling Order filed June 6, 2019 (ECF No. 29) at 2. It appeared that petitioner “ha[d] not

filed any (or hardly any) medical records dating between March/ April 2015 until early 2016.”

Id. at 3. Mr. Pitts stated that another attorney possessed additional medical records and/or other

evidence about petitioner’s condition. Id. This other attorney had represented petitioner from

June 8, 2016 to early 2017, in a successful claim for Social Security disability income (SSDI).

Id. at n. 3-4. I directed Mr. Pitts to seek a subpoena for these records, which I authorized.

On August 14, 2019, petitioner refiled much of the evidence from earlier as well as

additional evidence, most significantly the subpoenaed SSI records (ECF No. 40). On

September 5, 2019, respondent filed a supplemental response, in which respondent confirmed his

position that the newly filed evidence “clearly demonstrate[d]” that equitable tolling in

petitioner’s case was not warranted. Resp. Response to Supplemental Evidence filed September

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5, 2019 (ECF No. 46). Petitioner did not file further evidence or argument in support of her

claim. I deemed the matter to be ripe for adjudication.

On December 10, 2019, I issued a decision holding that even if the Vaccine Act permits

equitable tolling on the basis of mental and/or physical incapacity, in petitioner’s case, a full

review of the record did not support that finding. Accordingly, I granted respondent’s motion to

dismiss the petition for being filed outside of the statute of limitations and not entitled to

equitable tolling. Dismissal Decision (ECF No. 47). On January 16, 2020, the Clerk of Court

entered judgment on the dismissal decision (ECF No. 49).

On March 25, 2020, petitioner filed a notice of appeal of the dismissal decision, which

was addressed to the U.S. Court of Appeals for the Federal Circuit. Notice of Appeal (ECF No.

50). Respondent filed a motion to dismiss the appeal on the grounds that the appeal was

unavailable because petitioner had not previously sought review from a judge on the U.S. Court

of Federal Claims. On April 29, 2020, the Federal Circuit granted respondent’s motion to

dismiss the appeal. Federal Circuit Order (ECF No. 51), citing 42 U.S.C. § 300aa-12(e); Grimes

v. Sec’y of Health & Human Servs., 988 F.2d 1196, 1198 (Fed. Cir. 1993) (stating that the

statutory scheme governing Vaccine Act claims makes a motion for review filed with the Court

of Federal Claims “a prerequisite for appeal” to the Federal Circuit).

On July 6, 2020, petitioner filed the instant application for attorneys’ fees and costs. Pet.

Fees App. (ECF No. 52). She requested attorneys’ fees in the amount of $42,709.30 and

attorneys’ costs in the amount of $94.30, for a total attorneys’ fees and cost request of

$42,823.60. Pet. Fee App. at 3. On July 20, 2020, respondent filed a response, in which he avers

that petitioner has failed to establish reasonable basis for her claim and therefore is not entitled to

receive an award of attorneys’ fees and costs under the Vaccine Act. Resp. Objection (ECF No.

53) at 1, citing 42 U.S.C. § 300aa-15(e)(1). After receiving one unopposed extension of time, on

August 3, 2020, petitioner filed a reply arguing that there was reasonable basis for her claim and

that she should receive reasonable attorneys’ fees and costs. Pet. Reply (ECF No. 55). This

matter is now ripe for adjudication.

II. Reasonable Basis

A. Legal Standard

The Vaccine Act provides that reasonable attorneys’ fees and costs “shall be awarded”

for a petition that results in compensation. § 15(e)(1)(A)-(B). Even when compensation is not

awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court

determines that the petition was brought in good faith and there was a reasonable basis for which

the claim was brought.” § 15(e)(1). The Federal Circuit has reasoned that in formulating this

standard, Congress intended “to ensure that vaccine injury claimants have readily available a

competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs., 675 F.3d

1358, 1362 (Fed. Cir. 2012) (en banc) (Cloer II).

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Of particular relevance to the instant case, Cloer concerned a petition which was

determined to be filed outside of the Vaccine Act’s statute of limitations. The Federal Circuit, en

banc, affirmed that the petition was untimely, held that the Vaccine Act was subject to equitable

tolling in “extraordinary circumstances”, but ultimately held that the petitioner herself had not

demonstrated those extraordinary circumstances in her own case. Cloer v. Sec’y of Health &

Human Servs., 654 F.3d 1322 (Fed. Cir. 2011) (en banc) (Cloer I). Afterwards, the petitioner

moved for an award of attorneys’ fees and costs, which respondent opposed. The Federal

Circuit, en banc, held: “A petitioner who asserts an unsuccessful but nonfrivolous limitations

claim should be eligible for a determination of whether reasonable attorneys’ fees and costs

incurred in proceedings related to his or her petition should be awarded.” Cloer II, 675 F.3d

1358, 1364. The Federal Circuit planned to remand to the special master to determine whether

the untimely petition was indeed filed in good faith and supported by a reasonable basis. Id.

Respondent’s petition for certiorari was granted by the Supreme Court, where a majority held, in

an opinion by Justice Sotomayor, that a petition filed outside of the limitations period is eligible

for an award of attorneys’ fees and costs. Sebelius v. Cloer, 569 U.S. 369, 80 (2013) (Cloer III).

However, special masters remain responsible for determining “whether these late petitions were

brought in good faith and with a reasonable basis”. Id. at 381. The Supreme Court stated:

“[W]hen adjudicating the timeliness of a petition, the special master may often have to develop a

good sense of the merits of a case, and will therefore be able to determine if a reasonable basis

exists for the petitioner’s claim, including whether there is a good-faith reason for the untimely

filing.” Id. at 382. The Supreme Court concluded that a petition filed under the Vaccine Act

which is “found to be untimely may qualify for an award of attorneys’ fees if it is filed in good

faith and there is a reasonable basis for its claim.” Id.

“Good faith” and “reasonable basis” are two distinct requirements. Cottingham v. Sec’y

of Health & Human Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020); Simmons v. Sec’y of Health &

Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017); Chuisano v. Sec’y of Health & Human Servs.,

116 Fed. Cl. 276, 289 (2014)). “Good faith is a subjective test, satisfied through subjective

evidence.” Cottingham, 971 F.3d at 1344.

The Federal Circuit has recently clarified that reasonable basis, on the other hand, is an

objective test satisfied through objective evidence. Simmons, 875 F.3d at 635. While the Court

in Simmons did not identify what constituted subjective versus objective evidence, it did specify

two forms of evidence that were subjective: 1) evidence of attorney conduct and 2) a looming

statute of limitations. Id. Consideration of these two types of evidence in a reasonable basis

analysis constitutes an abuse of discretion. Id.

As a corollary to Simmons, the Federal Circuit has subsequently held that “failure to

consider objective evidence presented in support of a reasonable basis for a claim would

constitute an abuse of discretion.” Cottingham, 971 F.3d at 1345. While the Court in

Cottingham did not purport to identify all forms of objective evidence, it stated that “objective

medical evidence, including medical records… even where the records provide only

circumstantial evidence of causation” can support a showing of reasonable basis. Id. at 1346

(citing Harding v. Sec’y of Health & Human Servs., 146 Fed. Cl. 381, 403 (Fed. Cl. 2019)). The

Court also held that the special master should consider as objective evidence a vaccine package

insert, specifically a section titled “Adverse Reactions” which listed several injuries that were

4

also listed in the petitioner’s medical records. Id. The Cottingham Court also reiterated that the

reasonable basis determination is still based on a “totality of the circumstances”.

Reasonable basis is not defined in the Vaccine Act or the Federal Circuit’s case law.

However, it has been characterized as a degree of evidence which supports a “feasible” claim for

recovery. Santacroce v. Sec’y of Health & Human Servs., No. 15-555V, 2018 WL 405121, at *7

(Fed. Cl. Jan. 5, 2018). This degree of evidence is less than what is required to prove entitlement

to compensation. Cottingham at 1346 (citing Chuisano, 116 F. Cl. at 287). In Cottingham, the

Federal Circuit stated: “More than a mere scintilla but less than a preponderance of proof could

provide sufficient grounds for… reasonable basis.” Id.

Additionally, there may be reasonable basis at the time that a claim is filed, which then

dissipates as the claim proceeds. R.K. v. Sec’y of Health & Human Servs., 760 Fed. Appx. 1010,

1012 (Fed. Cir. March 15, 2019) (citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d

1375, 1376-77 (Fed. Cir. 1994) for the holding that “an award of fees and costs was not

authorized for work performed on a case after a claim lost its reasonable basis”). “Petitioners’

counsel have an obligation to voluntarily dismiss a Vaccine Act claim once counsel knows or

should know a claim cannot be proven.” Cottingham, 134 Fed. Cl. 567, 574 (2017) (citing

Perreira, 33 F.3d at 1376; Curran v. Sec’y of Health & Human Servs., 130 Fed. Cl. 1, 6 (2017);

Allicock v. Sec’y of Health & Human Servs., 128 Fed. Cl. 724, 727 (2016)).

B. Respondent’s Position

Respondent avers that petitioner has failed to establish a reasonable basis for her claim

and is thus not entitled to an award of attorneys’ fees and costs. Resp. Objection at 6.

Respondent states that such awards are not mandatory, that the petitioner bears the burden of

establishing reasonable basis, and that the determination is ultimately within the special master’s

discretion. Id. at 6-7. Respondent emphasizes the Federal Circuit’s recent holding in Simmons,

summarizing: “The binding effect of Simmons is clear: the reasonable basis analysis must focus

on whether there is evidentiary support for the essential elements of the claim set forth in the

petition, not whether counsel acted reasonably in filing the petition.” Id. at 8.

Respondent’s arguments for specifically contesting reasonable basis in this case are as

follows:

There is no question that the petition was untimely filed, by a significant (ten

month) period of time. The record evidence fails to support petitioner’s claim of

incapacity; indeed, she filed an SSDI claim during her hospitalization during the

winter of 2015, and the SSDI records ‘reflect that petitioner maintained mental

and physical capacity after her discharge.’ See Dec. at 24-25. Lastly, the records

demonstrate that the symptoms of petitioner’s alleged vaccine-related injury

began weeks before receiving the flu vaccination; thus, even if petitioner’s claim

had been timely filed, or equitable tolling had been applied, there was no

reasonable basis for the allegation that the vaccine caused-in-fact her condition.

Resp. Objection at 8.

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C. Petitioner’s Position

Petitioner does not address reasonable basis in the initial application for attorneys’ fees

and costs. In the reply, petitioner avers that I ordered her to seek counsel to represent her in the

claim, including filing of a response to the motion to dismiss. Pet. Reply at 4. Petitioner states:

It is inherent in this order by the Special Master that there was a reasonable basis

upon which to employ the services of an attorney, to perform work in furtherance

of petitioner’s claim. Had there not been a reasonable basis for the assertion of

equitable tolling, the Special Master should have dismissed the Petition out of

hand, and saved the parties, the Court, and especially Petitioner’s counsel (who

had to learn all of the rules of this Court, get admitted to the Bar, read all the

relevant case law, and formulate a response argument on the doctrine of equitable

tolling in reliance on the Special Master’s order that his client get counsel) costs

and fees.

Id. at 4-5. Petitioner also avers that in the dismissal decision, I noted “ample case law justifying

petitioner’s invocation of the doctrine of equitable tolling”. Id. at 5. Petitioner also notes

respondent’s concession that while the present case was pending, the Federal Circuit had not

resolved whether the Vaccine Act indeed permits equitable tolling on the basis of incapacity. Id.,

citing Resp. Objection at 5, n. 2, citing K.G. v. Sec’y of Health & Human Servs., 951 F.3d 1374,

1381 (Fed. Cir. 2020). Petitioner avers: “Accordingly, the key question is whether a ‘reasonable

basis’ existed for invoking the doctrine of equitable tolling, considering the case did not advance

past respondent’s motion to dismiss [on the grounds that the petition was not timely filed].

Under the standards argued by the respondent, petitioner had both a legal and factual ‘reasonable

basis’ for her position.” Pet. Reply at 5.

Petitioner stresses that in the decision evaluating petitioner’s claim of incapacity, I

evaluated the objective contemporaneous records as well as the later statements from petitioner,

her treating providers, and other witnesses. Pet. Reply at 5-6. Petitioner avers that my ultimate

finding that the evidence did not support a finding of incapacity for the requisite ten months does

not mean that there was not a reasonable basis for pursuing that argument. Id. at 6.

Petitioner does not address respondent’s separate argument that even if petitioner’s claim

had been timely filed, or equitable tolling had been applied, there was not reasonable basis

because the records demonstrate that the symptoms of petitioner’s alleged vaccine-related injury

began weeks before receiving the flu vaccination. See Resp. Objection at 8.

D. Discussion and Conclusion

Here, there is no allegation that petitioner or her counsel lacked good faith in pursuing the

petition up until its dismissal on grounds of being untimely and not entitled to equitable tolling.

However, respondent challenges reasonable basis. It is therefore necessary to evaluate 1)

whether there was a reasonable basis for pursuing the limitations argument and 2) whether there

was a reasonable basis for the underlying claim, during its limited pendency.

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First, this petition was unquestionably filed outside of the limitations period. However,

the Supreme Court held that a petition filed outside of the limitations period is eligible for an

award of attorneys’ fees and costs, but the special master must still determine whether the

petition is supported by good faith and a reasonable basis. Cloer III, 569 U.S. at 380-82. It is

surprising that neither respondent nor petitioner in her reply cited Cloer III. While it is not the

most recent controlling case (predating Simmons, Cottingham, and K.G.), it remains important to

the discussion.

Since Cloer, there have been very few opinions evaluating reasonable basis for untimely

filed petitions. In one case, the special master rejected the petitioner’s argument that she was

“thwarted” from filing the petition in time because a lawyer gave her “erroneous advice”, finding

that the limitations period had already run years before petitioner spoke to the lawyer in question.

Mathis v. Sec’y of Health & Human Servs., No. 8-570V, 2014 WL 7664951, at *14-15 (Fed. Cl.

Spec. Mstr. Dec. 23, 2014). In another case, the special master found that there was no

reasonable basis for filing a petition out of time because the law “clearly established” that the

statute of limitations ran from the first symptom or manifestation of the injury and that the

vaccinee’s medical records “clearly demonstrate[d]” symptoms of cerebral palsy five years

before the petition was filed. She reasoned: “petitioner’s misunderstanding of the applicable

legal standard… does not make the filing of their petition reasonable”. Somosot v. Sec’y of

Health & Human Servs., No. 13-710V, 2014 WL 6536059, at *7-8 (Fed. Cl. Spec. Mstr. Oct. 31,

2014), review denied, 120 Fed. Cl. 716, 720 (2015). In a third case, the special master’s denial

of reasonable basis took into account that the petitioners “did not present any evidence that they

were mentally incapacitated to the degree that they could not pursue their legal rights.” Powers

v. Sec’y of Health & Human Servs., No. 14-1195V, 2017 WL 1319762, at *7 (Fed. Cl. Spec.

Mstr. March 7, 2017).

I have not located any reasoned past opinions evaluating whether there was reasonable

basis for the untimely filing of a claim in which the petitioner has submitted evidence of alleged

incapacity but was ultimately unsuccessful. That is unsurprising because this area of the law is

not well-established. In Cloer I, the Federal Circuit sitting en banc held that the Vaccine Act

allows equitable tolling only in “extraordinary circumstances” but recognized only the

possibilities of fraud and duress. 654 F.3d at 1344. However, as noted in my dismissal decision

issued in December 2019, many jurisdictions had recognized equitable tolling of various statutes

on the basis of incapacity. Moreover, the Federal Circuit had concluded in the context of

veterans’ benefits appeals, that mental incapacity can be sufficient grounds for equitable tolling

in the veterans’ benefits context. Barrett v. Principi, 363 F.3d 1316, 1318 (Fed. Cir. 2004). One

other special master and I subsequently held, despite opposition from respondent, that mental

incapacity can also be sufficient grounds for equitable tolling of the Vaccine Act. Hodge v.

Sec’y of Health & Human Servs., No. 09-453V, 2015 WL 9685916 (Fed. Cl. Spec. Mstr. Dec.

21, 2015); Gray v. Sec’y of Health & Human Servs., No. 15-146V, 2016 WL 787166 (Fed. Cl.

Spec. Mstr. Feb. 4, 2016); Gray, 2016 WL 6818884 (Fed. Cl. Spec. Mstr. Oct. 17, 2016). Since

the dismissal of petitioner’s claim, a Federal Circuit panel, citing favorably to Barrett, has held

that equitable tolling on the basis of mental incapacity is indeed available under the Vaccine Act.

K.G. v. Sec’y of Health & Human Servs., 951 F.3d 1374, 1381 (Fed. Cir. 2020) (remanding to the

special master to apply a newly formulated test, under which the petitioner must demonstrate

both extraordinary circumstances and reasonable diligence). Accordingly, the controlling law

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was not established either when the pro se petitioner requested an exception to the statute of

limitations on the basis of incapacity or when she retained counsel who advanced that legal

argument.

I agree that there was a reasonable basis for counsel to enter the case. During the initial

status conference, the pro se petitioner strenuously maintained that despite filing the petition

outside of the statute of limitations, she should receive an exception based on the significant

impact the injury had on her life, which in legal terms, would amount to equitable tolling on the

basis of mental and/or physical incapacity. I directed petitioner to seek the assistance of counsel

in responding to the motion to dismiss, which would include gathering and filing the medical

records and other evidence. Counsel did come in, obtained, organized and filed numerous

additional records. He also made a colorable argument for the extension of the law of equitable

tolling. Pet. Response to Resp. Mot. at 14-17. I agree that there was a reasonable basis for

counsel to enter the case. Afterwards, I carefully evaluated all of the evidence submitted. I

found that the contemporaneous medical records and SSD paperwork (the latter of which was not

expressly required by the Vaccine Act, the Guidelines, or respondent but proved to be important

to my decision) did not support a finding of incapacity that would toll the statute long enough to

render the petition timely filed.

Apart from the untimely filing, the petition possessed reasonable basis for its limited

lifespan. The record establishes that petitioner received the flu vaccination on October 17, 2014.

Dismissal Decision at 8. On November 15, 2015, petitioner presented for emergency treatment

(which proved to be the beginning of a lengthy course at several facilities, culminating only in

her discharge from in-patient rehabilitation on March 18, 2015). Petitioner was assessed with

inflammatory myositis, which was treated effectively with IVIg and later Rituxan (rituximab).

This assessment and particularly these treatments are consistent with autoimmune disease.

Additionally, past vaccine injury claims for influenza followed by myositis have resulted in

stipulations awarding compensation to the petitioners. See, e.g., Bowsher v. Sec’y of Health &

Human Servs., No. 18-1590V, 2019 WL 4011486 (Fed. Cl. Spec. Mstr. July 30, 2019);

Dilshaver v. Sec’y of Health & Human Servs., No. 16-716V, 2019 WL 4120696 (Fed. Cl. Spec.

Mstr. July 25, 2019); Bartkus v. Sec’y of Health & Human Servs., No. 15-261V, 2018 WL

6166863 (Fed. Cl. Spec. Mstr. Oct. 29, 2018); Colvis v. Sec’y of Health & Human Servs., No.

13-841V, 2015 WL 550931 (Fed. Cl. Spec. Mstr. Jan. 14, 2015).

Respondent avers that there was no reasonable basis for the allegation that the flu vaccine

caused petitioner’s injury because “the symptoms of petitioner’s alleged vaccine-related injury

began weeks before[hand]”. Resp. Objection at 8. Respondent avers that petitioner complained

of pain, inflexibility, and stiffness in her upper and lower extremities approximately two months

before the vaccination.3 Id. at 1, citing Dismissal Decision at 7. However, respondent does not

mention that petitioner was describing these complaints, as well as a long history of trauma,

while establishing care with a new chiropractor in a new state of residence. Dismissal Decision

at 7. This chiropractor assessed petitioner with cervical, thoracic, and lumbar dysfunction. Id.

3

Respondent inadvertently states that this chiropractic visit was “in late August 2019”. Resp. Objection at 1. A

review of my decision dismissing petitioner’s claim and the underlying evidence makes clear that the chiropractic

visit was in late August 2014.

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Respondent also emphasizes that petitioner reported concerns about decreased physical strength,

difficulty swallowing, and weight loss prior to the vaccination. Resp. Objection at 1-2, citing

Dismissal Decision at 7-9. There is indeed some potential that these symptoms represented the

pre-vaccination onset of myositis. However, it is clear that several weeks after receiving the flu

vaccination, petitioner’s condition worsened to the point that she sought emergency treatment,

she received a diagnostic work-up and treatment, and she was not discharged home for four

months. (And it is clear that she suffered residual symptoms for more than six months.) The

Vaccine Act does not limit a petition to alleging that a vaccine caused the initial onset of an

injury; alternatively, the petition may allege that a vaccine significantly aggravated a preexisting

injury. 42 U.S.C. § 300aa-11(c)(1)(C). While this petition, filed pro se, does not allege a

significant aggravation claim in the alternative, I find potential for that allegation based on the

undeveloped record before me. However, if the claim was accepted as timely filed, petitioner

would have needed a medical expert to address whether any of the various pre-vaccination

symptoms (which appear non-specific to a layperson) represented the onset of her myositis and if

so, whether the vaccine significantly aggravated her condition.

I have considered the totality of the circumstances including the colorable argument for

equitable tolling on the basis of incapacity; the objective evidence of vaccination, injury shortly

thereafter, and residual symptoms lasting for more than six months; the autoimmune nature of

the injury; past awards of compensation for that injury following flu vaccination; and the

potential of a significant aggravation claim. I find that there was a reasonable basis supporting

petitioner’s claim until it was dismissed.

III. Reasonable Attorneys’ Fees and Costs

A. Legal Standard

As stated above, the Vaccine Act only authorizes “reasonable” attorneys’ fees and costs. The

Federal Circuit has approved use of the lodestar approach to determine reasonable attorneys’ fees

and costs under the Vaccine Act. Avera, 515 F.3d at 1349. Using the lodestar approach, a court

first determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the number of

hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58

(quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or

downward departure from the initial calculation of the fee award based on other specific

findings. Id. at 1348. Although not explicitly stated in the statute, the requirement that only

reasonable amounts be awarded applies to costs as well as to fees. See Perreira v. Sec’y of

Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994).

Special masters have “wide discretion in determining the reasonableness of both

attorneys’ fees and costs.” Hines v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991).

They may look to their experience and judgment to reduce the number of hours billed to a level

they find reasonable for the work performed. Saxton v. Sec’y of Health & Human Servs., 3 F.3d

1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the billing records is not required.

Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 483 (1991), aff’d in relevant part,

988 F.2d 131 (Fed. Cir. 1993 (per curiam).

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The petitioner “bea[rs] the burden of establishing the hours expended, the rates charged,

and the expenses incurred” are reasonable. Wasson, 24 Cl. Ct. at 484. Adequate proof of the

claimed fees and costs should be presented when the motion is filed. Id. at 484, n. 1. Counsel

“should make a good faith effort to exclude from a fee request hours that are excessive,

redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to

exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

B. Hourly Rate

A “reasonable hourly rate” is defined as the rate “prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience and reputation.” Avera, 515 F.3d

at 1348 (quoting Blum, 465 U.S. at 896 n.11). In general, this rate is based on “the forum rate for

the District of Columbia” rather than “the rate in the geographic area of the practice of

petitioner's attorney.” Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1384 (Fed.

Cir. 2011) (citing Avera, 515 F. 3d at 1349). There is a “limited exception” that provides for

attorneys' fees to be awarded at local hourly rates when “the bulk of the attorney's work is done

outside the forum jurisdiction” and “there is a very significant difference” between the local

hourly rate and forum hourly rate. Id. This is known as the Davis County exception. See Hall v.

Sec'y of Health & Human Servs., 640 F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste

Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

Of note, the Davis County involved attorneys practicing in Salt Lake City, Utah. Davis,

169 F.3d at 760 (characterizing Utah as “the less expensive legal market” in comparison to

Washington, DC. Similarly, within the Vaccine Program, an attorney based in Salt Lake City,

Mr. David Charles Richards, has consistently been placed under the Davis County exception and

awarded hourly rates based on his local market, not the forum rate of Washington, D.C. Smith v.

Sec’y of Health & Human Servs., No. 17-302V, 2019 WL 7557790, *2 (Fed. Cl. Spec. Mstr.

Dec. 20, 2019); McClellan v. Sec’y of Health & Human Servs., No. 14-714V, 2017 WL

5382907, *4 (Fed. Cl. Spec. Mstr. Sept. 29, 2017); Atnip v. Sec’y of Health & Human Servs., No.

14-1006V, 2016 WL 4272057, *3-4 (Fed. Cl. Spec. Mstr. July 6, 2016). Mr. Richards, who has

been practicing law since 1991 and has been recognized as a “seasoned attorney with particular

experience in the Vaccine Program”, Atnip, 2016 WL 4272057 * 4, has been awarded $321.00

per hour for work performed in 2018 and $332.00 per hour for work performed in 2019. His

2020 rate has not been set, based on my research.

Here, petitioner’s counsel Mr. Judson Pitts is also based in the Salt Lake City, Utah

metropolitan area. According to the billing records, all or substantially all of the work on the

case was performed in that market. Mr. Pitts was admitted to practice law in 2003. Pet. Fee

App. at 36.4 However, this was his first case in the Vaccine Program (and before the Court of

Federal Claims more generally). Mr. Pitts avers based on his review of the Davis case, Mr.

Richards’s rate in the Vaccine Program, and his own qualifications, that he should be awarded

$250.00 per hour for work performed in 2018 – 2020. Pet. Fee App. at 3. Upon review and

4

See also Utah State Bar Member Directory – Judson Pitts, available at https://services.utahbar.org/Member-

Directory/Profile?customercd=9946 (reflecting that Mr. Pitts was admitted to the Utah State Bar in 2003 and is an

active member) (last visited October 20, 2020).

10

particularly based on a comparison with Mr. Richards, who has an additional 12 years of legal

experience generally and significantly more experience specifically in the Vaccine Program, I

find that the requested rate of $250.00 per hour is reasonable. However, as discussed below,

significant adjustments will be made to the hours expended on the case.

Mr. Pitts avers that his assistant Laura Kaplan – who has been employed in his office

since 2018 and possesses both a paralegal certification and an associates’ degree in Legal Studies

– should be compensated at hourly rates of $75.00 in 2019 and $80.00 in 2020. Id. at 2-4. I find

that these rates are reasonable and will be awarded without adjustment.

Finally, Mr. Dean Becker (who is a retired lawyer who helped petitioner prepare the

petition which was filed pro se and also helped Mr. Pitts with the later filings) requests hourly

rates of $100.00 in 2018, $103.00 in 2019, and $105.00 in 2020. Id. at 2-4. This rate is similar,

albeit slightly higher, to the rate awarded for the paralegal/assistant addressed above. I find that

it is reasonable, although as discussed below, I find that the hours expended in 2018 are not

compensable.

C. Hours Expended

The fee request does not include a total number of hours or subtotals for each individual.

I have thoroughly reviewed the billing records with cross-reference to the docket in this case. A

special master may rely on his or her experience and judgment to evaluate the reasonableness of

hours expended. Id. Just as “[t]rial courts routinely use their prior experience to reduce hourly

rates and the number of hours claimed in attorney fee requests …. [v]accine program special

masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 3

F.3d at 1521. And as previously noted, a special master is not required to perform a line-by-line

evaluation of a fee application. Wasson, 24 Cl. Ct. at 484. It is within a special master’s

discretion to instead make a global reduction to the total amount of fees requested. See Hines v.

Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991) (“special masters have “wide

latitude in determining the reasonableness of both attorneys’ fees and costs”); Hocraffer v. Sec’y

of Health & Human Servs., No. 99-533V, 2011 WL 3705153 (Fed. Cl. Spec. Mstr. July 25,

2011), mot. for rev. denied, 2011 WL 6292218, at *13 (Fed. Cl. 2011) (denying review of the

special master’s decision and endorsing “a global – rather than line-by-line – approach to

determine the reasonable number of hours expended in this case”); Raymo v. Sec’y of Health &

Human Servs., No. 11-654V (Fed. Cl. Spec. Mstr. Nov. 2, 2016), mot. for rev. denied, 129 Fed.

Cl. 691 (2016) (approving the chief special master’s reduction of one firm’s fees by twenty

percent and a second firm’s fees by forty percent). That said, the following issues were of

particular concern.

1. Retired Attorney Mr. Becker

The Vaccine Act permits an award of only those reasonable attorneys’ fees and costs that

are “incurred in any proceeding on such petition”. 42 U.S.C. § 300aa-15(e) (emphasis added).

“[I]n ordinary usage, … to ‘incur’ expenses means to pay or become liable for them.”

McCulloch v. Sec’y of Health & Human Servs., 923 F.3d 998, 1003 (Fed. Cir. 2019) (affirming

the special master’s award of attorneys’ costs associated with maintaining a guardianship which

11

was required by state law and the proffer awarding compensation); citing Black v. Sec’y of

Health & Human Servs., 93 F.3d 781, 785 (Fed. Cir. 1996). Special masters have routinely

denied attorneys’ fees that are billed by pro se petitioners and their personal associates with

whom they have not formed an attorney-client relationship, on the reasoning that the fees have

not been “incurred” under the meaning of the Vaccine Act. See, e.g., Riley v. Sec’y of Health &

Human Servs., 1992 WL 892300 (Fed. Cl. Spec. Mstr. March 26, 1992) (denying attorneys’ fees

billed by a petitioner who was himself an attorney on the grounds that his work on the case

constituted self-help); Koii v. Sec’y of Health & Human Servs., No. 05-438V, 2007 WL 5161800

(Fed. Cl. Spec. Mstr. Nov. 21, 2007) (the petitioner’s spouse, an active practicing attorney);

Underwood v. Sec’y of Health & Human Servs., No. 00-357V, 2013 WL 3157525 (Fed. Cl.

Spec. Mstr. May 31, 2013) (finding “nothing in the record to suggest that Ms. Underwood

entered into a ‘formal, established attorney-client relationship’ with her brother”). It may

debatable how far the “self-help” extends beyond petitioners themselves and their family

members to their other acquaintances. However, it remains crucial for the petitioner to “incur”

the attorneys’ fees, by for instance, establishing a formal attorney-client relationship.

Additionally, under the Vaccine Rules, an attorney must be admitted to the Bar of the

Court of Federal Claims to be eligible to practice in the Vaccine Program. See Vaccine Rule

14(a)(1) (providing that as a prerequisite to admission to the CFC bar, an attorney must be in

good standing with the bar of the highest court of another state or other jurisdiction within the

United States). Where an attorney is not eligible to practice before this Court, there can be no

basis for such counsel to recover attorneys’ fees under the Vaccine Act. See, e.g., Underwood,

2013 WL 3157525, at *3-4.

Here, the fee application includes work expended by Mr. Dean Becker. See Pet. Fee

App. - Tab A at 21-23. Mr. Becker is described as a “former (retired/ inactive) attorney who

helped the petitioner prepare her claim in this case pro se”. Pet. Fee App. – Tab C at ¶ 9. His

timesheet reflects that he first met with petitioner on July 20, 2018; helped to draft and file the

pro se petition; and contacted Mr. Pitts who agreed to take the case in December 2018. Pet. Fee

App. – Tab A at 21. Because there is no evidence that petitioner “incurred” any legal obligation

to pay for this retired attorney’s assistance with her claim, which was indeed filed pro se, those

costs are not compensable. This represents approximately 42.7 hours logged by Mr. Becker in

2018.

This is in contrast to when Judson Pitts, petitioner’s attorney of record, started billing in

late 2018 and hired Mr. Becker as an assistant “specifically to assist with this claim during

2019.” Pet. Fee App. – Tab C at 4. At this point, it seems that Mr. Pitts, an active attorney who

gained admission to practice before the Court of Federal Claims, was supervising Mr. Becker as

an assistant/ paralegal, whose fees were “incurred” and therefore reimbursable.

12

2. Admission to the Bar

Mr. Pitts billed at least 12.0 hours expended to obtain admission to the bar of the U.S.

Court of Federal Claims (USCFC).5 Mr. Becker billed 1.5 hours to assist Mr. Pitts to obtain a

letter of recommendation.6 Ms. Kaplan billed 2.5 hours to pick up supporting letters of

recommendation and a certificate of good standing, then mail the completed application to the

Court.7 Fees (and costs, as addressed below) related to counsel’s bar admission are not

compensable. See, e.g., Raymo, 2016 WL 7212323, at *12 (denying such fees); Oswalt v. Sec’y

of Health & Human Servs., No. 03-2153V, 2011 WL 2149932, at *13 (Fed. Cl. Spec. Mstr. May

2, 2011) (characterizing admission to practice before this new jurisdiction as a “professional

enhancement”); Velting v. Sec’y of Health & Human Servs., No. 90-1432V, 1996 WL 937626,

*1-2 (Fed. Cl. Spec. Mstr. Sept. 24, 1996) (following past cases where special masters reasoned

that the bar admission “conferred an ongoing benefit to counsel”, even though counsel in Velting

argued that he sought admission specifically for that case and it appeared unlikely that he would

use it again).

3. Research Regarding the Vaccine Program

It is well-established that counsel cannot not bill for educating themselves about basic

aspects of the Vaccine Program. See, e.g., Doherty v. Sec’y of Health & Human Servs., No. 15-

1429v, 2020 WL 2958291, at *8 (Fed. Cl. Spec. Mstr. May 7, 2020); Antolick v. Sec’y of Health

& Human Servs., No. 16-1460v, 2020 WL 524776, at *5 (Fed. Cl. Spec. Mstr. Jan. 13, 2020),

citing Helton v. Sec’y of Health & Human Servs., No. 16-234V, 2017 WL 4020452, at *5) (Fed.

Cl. Spec. Mstr. Aug. 28, 2017); see also Goldie v. Sec’y of Health & Human Servs., No. 18-

1476V, 2019 WL 7496619, at *4 (Fed. Cl. Spec. Mstr. Dec. 6, 2019) (providing additional case

law). Here, Mr. Pitts billed approximately 11.0 hours on general research of the Vaccine

Program, the procedural rules, and the applicable legal standards.8 Mr. Becker billed

approximately 14.7 hours on the same.9 This does not include the additional time billed for

5

Pet. Fee App., Tab A at 2 (December 17, 2018 – 1.0 hour); id. (December 19, 2018 – 0.5 hour); id. (December 20,

2018 – 0.5 hour); id. at 3 (December 28, 2018 – 0.1 hour); id. at 4 (January 14, 2019 – several entries totaling 1.6

hours); id. (January 22, 2019 – 1.0 hour); id. (January 23, 2019 – 2 hours); id. at 5 (January 28, 2019 – 4 hours); id.

at 5 (January 30, 2019 – 6.0 hours for various tasks, including bar application); id. at 6 (February 4, 2019 – 8.0 hours

for various tasks, including bar application).

6

Pet. Fee App., Tab A at 22 (January 14, 2019 entry).

7

Pet. Fee App., Tab A at 5 (January 28, 2019 entry).

8

See, e.g., Pet. Fee App., Tab A at 2 (December 4, 2018 entry of 1.5 hours for “research re: Federal Court of Claims

and Vaccine Program”); id. at 6 (February 8, 2019 entry of 1.0 hours for “Receipt of Order from CFC requiring the

filing of medical records and amendment of memorandum in opposition; look up rules on medical records filing”);

id. (February 11, 2019 entry of 2.0 hours for “Reviewed rules for medical records”); id. (February 12, 2019 entry of

2.0 hours for “Continued reviewing Vaccine Rules for medical records, filing, documenting opposition

memoranda”); id. at 9 (April 4, 2019 (April 5, 2019 entry of 3.0 hours for “research case procedure with

CFC/Vaccine Program re: Notice to Submit, filing for leave to file sur Replies; Scheduling etc…; phone calls to

other vaccine counsel”); id. at 11 (June 10, 2019 entry of 1.5 hours for tasks including “review of CFC Rules and

Vaccine Rules”).

9

See, e.g., Pet. Fee App., Tab A at 22 ( (January 2, 2019 entry of 1.9 hours including “Research RCFC discovery

13

repeated communications, presumably asking for advice, from other attorneys with more

experience in the Vaccine Program.10 An attorney may well need to learn the procedural rules

and understand the applicable case law upon entering the Vaccine Program, but it is not

appropriate to bill that research to his or her first case.

4. Excessive and Unnecessary Billing

As stated above, the Vaccine Act’s “reasonable” standard bars hours that are “excessive,

redundant, or otherwise unnecessary”. From Hensley v. Eckerhart, 461 U.S. 424. Additionally,

the Vaccine Program places a high premium on contemporaneous, objective medical records and

other such documentation. A petitioner’s claim must have “supporting documentation”

including “vaccination records associated with the vaccine allegedly causing the injury, pre- and

post-injury physician or clinic records (including all relevant growth charts and test results),

[and] all post-injury inpatient and outpatient records”. 42 U.S.C. § 300aa-11(c)(2) (requiring

that the petition is accompanied by all pre- and post-vaccination medical records); § 13(a)

(prohibiting the special master from awarding compensation “based on the claims of a petitioner

alone”); Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993)

(holding that contemporaneous medical records “warrant consideration as trustworthy

evidence”); Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998) (holding

that later testimony “must be consistent, clear, cogent, and compelling” to outweigh such earlier

contemporaneous evidence).

Here, petitioner, with the behind the scenes assistance of Mr. Becker, filed the petition

pro se accompanied by limited medical records, predictably less than what was required under

the Vaccine Act. Respondent noted in his motion to dismiss, filed October 10, 2018, that he

derived the facts “from the limited medical records that were filed with the petition”. Resp. Mot.

at n. 1. I then ordered petitioner to seek counsel and file a response to the motion to dismiss,

specifically stating: “If by this deadline, a lawyer has entered his or her appearance but needs

additional time to prepare a response, he or she may file a motion for extension of time.” See

Scheduling Order filed October 16, 2018 (ECF No. 10) at 2. In the subsequent months, Mr. Pitts

agreed to take the case, but he did not seek any additional medical records. Instead, he entered

his appearance and filed an opposition to respondent’s motion which cited solely to affidavits

from petitioner and numerous other individuals. Pet. Response filed February 6, 2019 (ECF No.

19) (stricken for filing issues), refiled February 22, 2019 (ECF No. 23). This opposition brief

made several arguments including that petitioner received an initial dose of rituximab which

made her seem temporarily more capable in March 2015 but she deteriorated afterwards, see Pet.

Response at 21-22, and that she was not capable to pursue a SSDI claim until over a year later,

id. at 18, 22. Afterwards, I encouraged and authorized a subpoena for the production of

petitioner’s full SSDI record, which included all of petitioner’s medical records, which did not

rules and find no Rule 26 pretrial disclosures” and “researc[h] how to take early depo of UoU drs”); id. at 23

(January 10, 2020 entry of 5.2 hours to research the rules concerning deadline to file motion for review); id.

(January 29, 2020 entry of 1.2 hours for further research of the Vaccine Rules “to determine deadlines and whether

to review or appeal”).

10

See, e.g., Pet. Fee App – Tab A at 2 (December 27, 2018 “phone calls with attorney in Boston and in Salt Lake

City; e-mail to David Richards”); id. at 4 (January 2, 2019 “email to David Richards”); id. at 9 (April 4, 2019

“phone calls to other vaccine counsel”).

14

support the assertions made in her brief. I find that counsel’s significant billing to prepare

affidavits and a brief that were not corroborated by the contemporaneous records was excessive

and unnecessary. I appreciate that petitioner’s counsel eventually obtained the records, with

support of subpoenas authorized by the Court, in August 2019. However, a better interview of

petitioner and efforts to obtain these important records would have saved petitioner’s counsel, as

well as respondent’s counsel and the Court, valuable time.

5. Response to the Dismissal Decision

Another category of the billing was unnecessary and/or impermissible research. Namely,

on January 9, 2020, Mr. Pitts writes that “no notice of December 10 [Dismissal] Decision

provided to us”. Pet. Fee App – Tab A at 18. Afterwards, he and Mr. Becker expended

approximately 10 hours speaking with petitioner, determining whether to file a motion for review

(including whether the 30-day deadline ran from the date of filing or the later date that the

decision was posted onto the Court’s website), researching the Court’s rules, beginning to draft a

motion for review, and eventually filing an appeal to the Federal Circuit which was rejected as

there was no prior motion for review. Pet. Fee App. – Tab A at 17-18, 23. I do not find this to

be reasonable because when Mr. Pitts entered his appearance in the case in February 2019, he

provided an email address to which he requested that all documents be sent. See Notice (ECF

No. 17). In the ensuing months, multiple orders were filed on CM/ECF and delivered to the

same email address. Mr. Pitts did not notify my chambers about any issues receiving CM/ECF

notifications. The dismissal decision was sent to the same email address, as shown below:

Even allowing for the possibility that the CM/ECF notification was inadvertently deleted or

redirected, counsel has an obligation to periodically check the docket in his case. Moczek v.

Sec’y of Health & Human Servs., 776 Fed. App’x 671, n. 3 (Fed. Cir. 2019) (“Even if counsel

did not receive email notification of the orders, he had an obligation to monitor the docket”).

This error generated the subsequent billing for research into extending the deadline for a motion

for review and instead filing an appeal which was not accepted by the Federal Circuit. I am not

willing to reimburse these costs.

15

6. Preparation of the Fee Application

Finally, within the Vaccine Program, counsel is required to keep contemporaneous billing

records. Vaccine Guidelines at 7 (“Careful and contemporaneous documentation… is required

to establish that the fees and costs claimed are reasonable”). Here, Mr. Pitts expended at least 7

hours to prepare the attorneys’ fees and costs application in May 2020. See Pet. Fee App. – Tab

A at 19-20. Given that the application did not include any complex legal arguments (e.g.,

preemptively defending reasonable basis) and contained only four receipts supporting the costs,

it seems likely that counsel spent a fair amount of time recreating or filling in the billing entries,

which should have been done contemporaneously. Billing for this task as well is unreasonable

and should not be compensated.

For all of the foregoing reasons and to achieve a reasonable result, I find that it is

within my discretion to reduce petitioner’s total fee request by fifty per cent. This results

in a reduction of $21,404.65.

D. Costs

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

27 Fed. Cl. 29, 34. Here, petitioner requests reimbursement of $94.30, including $20.00 for

obtaining a certificate of Mr. Pitt’s good standing with the Utah State Bar association and $24.30

for mailing his application to the Court of Federal Claims. Pet. Fee App., Tab A at 7, 19; Tab B

at 2, 4. But as noted above, fees and costs associated with gaining admission to practice before

the Court of Federal Claims are not compensable. See, e.g., Raymo, 2016 WL 7212323, at *12;

Oswalt, 2011 WL 2149932, at *13; Velting, 1996 WL 937626, at *1-2.

IV. Conclusion

In accordance with the foregoing, petitioner’s motion for attorneys’ fees and costs is

GRANTED. Final attorneys’ fees and costs are awarded as follows:

Attorneys’ Fees Requested $42,709.30

(Deductions) -$21,354.65

Attorneys’ Fees Awarded $21,354.65

Attorneys’ Costs Requested $ 94.30

(Deductions) -$ 44.30

Attorneys’ Costs Awarded $ 50.00

Attorneys’ Fees and Costs Awarded $ 21,404.65

Accordingly, the following is awarded:

1) A lump sum in the amount of $21,404.65, representing reimbursement for final

attorneys’ fees and costs, in the form of a check payable jointly to petitioner and

her attorney Judson T. Pitts.

16

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of

the Court is directed to enter judgment forthwith.11

IT IS SO ORDERED.

s/Thomas L. Gowen

Thomas L. Gowen

Special Master

11

Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule

11(a).

17