“Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.”
How later courts described this case
- “Vaccine program special masters are also entitled to use their prior experience in reviewing fee applications.”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-189V
Filed: April 29, 2013
Not To Be Published
*************************************
ANNE BROOKS BRAUER, *
*
Petitioner, *
* Attorneys’ Fees and Costs;
v. * Reasonable Basis Determination
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Anne B. Brauer, Fredericksburg, VA, pro se.
Lara A. Englund, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION DENYING ATTORNEYS’ FEES AND COSTS1
On March 23, 2012, petitioner filed a petition pro se under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa–10-34, alleging that influenza vaccine administered on
October 11, 2011 caused her pain, sweating, swelling in her legs, wrists, and knees, and Guillain-
Barré syndrome (“GBS”). On January 22, 2013, the undersigned issued a decision dismissing
the petition (“Decision”) for failure to make a prima facie case. The clerk of the court entered
judgment pursuant to Vaccine Rule 11(a) on February 25, 2013. On March 13, 2013, petitioner
filed an application for attorneys’ fees and costs (“Fee App.”). Petitioner requests $13,725.00,
comprised of $13,575.00 in fees and $150.00 in costs. On March 29, 2013, respondent filed a
response to petitioner’s application for attorneys’ fees and costs (“Opp’n”). On April 8, 2013,
1
Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public
unless they contain trade secrets or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted
invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to redact
such information prior to the document's disclosure. If the special master, upon review, agrees that the
identified material fits within the banned categories listed above, the special master shall redact such
material from public access.
respondent filed a supplement to her response in opposition to petitioner’s request for attorneys’
fees and costs (“Supp. Opp’n”). Petitioner filed a reply to respondent’s response and
supplemental response (“Reply”) on April 24, 2013. In her reply, petitioner requests $17,303.00
in attorneys’ fees and costs.2
I. Factual Background
Petitioner was born on May 16, 1929.
On May 17, 2011, before she received her October 11, 2011 flu vaccination, she went to
Fredericksburg Orthopaedic Associates, P.C., complaining of an injury in December 2010 when
her large dog pulled her across the street in response to the barking of another dog. She had
significant pain. She subsequently developed walking pneumonia. She limped on her right side.
PA Heather Brown diagnosed her with severe right hip osteoarthritis, lumbar spondylosis, and
right knee osteoarthritis, and gave her a prescription for Celebrex. Folder no. 4, unpaginated
page.
On October 11, 2011, petitioner received influenza vaccine. Folder no. 3 at page 22.
On December 26, 2011, petitioner saw Dr. George D. Fish at Mary Washington Hospital
for an x-ray of her right hip which was ordered by Dr. David M. Garth. Folder no. 4 at page 1.
Petitioner had pain without trauma after having had a fall. She had lateral right hip pain. Dr.
Fish diagnosed her with severe advanced osteoarthritic changes of her right hip. Id. Petitioner
attributed her pain to the flu vaccination. Ex. A at 95. Petitioner’s pain in her right hip began
about one year previously after a fall and peaked in severity about one day before. Petitioner
stated she had x-rays about six months previously and was diagnosed with a right hip fracture.
The pain had been waxing and waning in severity since it began. Id. Dr. Fish interpreted an x-
ray of petitioner’s lumbosacral spine as showing advanced degenerative changes of the lumbar
spine and both hips with particularly striking degeneration of the right hip. His impression was
advanced degenerative changes but no definite acute abnormality. Id. at 103.
On the same date, December 26, 2011, Dr. Fish took an x-ray of petitioner’s right knee
which showed osteoarthritic changes of her knee with a sizable approximately 2.8 cm calcific
loose body in the suprapatellar pouch. Folder no. 4 at page 31.
On January 18, 2012, PA Brown at Fredericksburg Orthopaedic Associates, P.C. noted
petitioner had increased lower back and right hip pain. Petitioner had known severe
osteoarthritis of her hip and lower back. The pain became so intolerable over the holidays,
which were very active, that she went to the emergency room and was treated and released with
medications by Dr. Garth, and then referred back to Fredericksburg Orthopaedic Associates for
further evaluation. Oral steroids provided relief for a short period of time. Petitioner used a cane
and had a knee brace on her right knee. Otherwise, petitioner was neurosensorily intact, in other
words, normal neurologically. X-rays showed petitioner has severe osteoarthritis of her right hip
and lumbar spondylitic changes. The recommendation was that petitioner get her right hip
replaced. Id. at unpaginated page.
2
The sum of petitioner’s requests was actually $17,293.00. See Reply 1-2.
2
On April 3, 2012, petitioner saw Dr. Andrew Garvie, complaining of nausea, vomiting,
diarrhea, cough, and congestion. Dr. Garvie thought petitioner’s heart had some cardiomegaly.
She had atherosclerosis and degenerative changes in her spine. Ex. A at 59. She had no
seriously abnormal test results. Dr. Garvie diagnosed petitioner with bronchitis. Id. He
prescribed Robitussin A-C cough syrup. Id.
On August 12, 2012, petitioner returned to Mary Washington Hospital, complaining of
left flank pain. Dr. Roni F. Talukdar examined petitioner’s CT scans and concluded there was
no explanation for the symptoms. Id. at 33. Her organs were normal and there was no kidney
stone. Dr. Talukdar noted that petitioner had marked degenerative change within her hips with
severe osteoarthritis of her right hip. She also had multilevel degenerative disc and facet disease
involving her lower lumbar spine. Id.
II. Discussion
A. In General
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in
order to receive a fee award as long as petitioner brought the claim in “good faith and there was a
reasonable basis for the claim.” Id. The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3
F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”).
B. Attorneys’ Fees
Petitioner requests compensation for the time she spent working on this case. Fee App.
4-6; Reply 1-2. As a pro se petitioner, petitioner in the above-captioned case cannot be
compensated for attorneys’ fees for time expended in pursuit of her petition. Under 42 U.S.C. §
300aa-15(e)(1) and Vaccine Act case law, it is firmly established that pro se petitioners are not
entitled to attorneys’ fees. See Long v. Sec’y of HHS, No. 94-310V, 1995 WL 1093129, at *1
(Fed. Cl. Spec. Mstr. Oct. 27, 1995) (finding that a non-attorney pro se petitioner was not entitled
to attorneys’ fees); see also Kay v. Erhler, 499 U.S. 432, 435 (finding that a pro se litigant is not
entitled to attorneys’ fees for a case brought under 42 U.S.C. § 1988, which contains a fee
provision similar to the Vaccine Act’s); Kooi v. Sec’y of HHS, No. 05-438V, 2007 WL
5161800, at *6 (Fed Cl. Spec. Mstr. Nov. 21, 2007) (finding a husband is not entitled to
attorneys’ fees for research and work regarding his wife’s petition). She is not entitled to be
reimbursed for expending her own time in pursuit of her petition. Petitioner’s request for
attorneys’ fees for herself is denied. The next question is whether she receives costs.
C. Costs: Good Faith and Reasonable Basis Determinations
The Vaccine Act provides that a special master may award a pro se petitioner costs if the
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special master determines that the petition was “brought in good faith and there was a reasonable
basis for the claim . . . .” 42 U.S.C. § 300aa-15(e)(1). Respondent claims that petitioner has not
met the statutory requirement of establishing that the petition was brought with a reasonable
basis. Opp’n 2. Therefore, respondent objects to any award of costs.
1. Good Faith
Good faith has been interpreted to mean that the petitioner holds an honest belief that a
vaccine injury occurred. Turner v. Sec’y of HHS, No. 99-544V, 2007 WL 4410030, at *5 (Fed.
Cl. Spec. Mstr. Nov. 30, 2007). As such, the good faith requirement is subjective. Hamrick v.
Sec’y of HHS, No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A
petitioner is “entitled to a presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114,
121 (1996).
In the present case, respondent has not presented any evidence to overcome petitioner’s
presumption of good faith. Respondent does not mention good faith in her response or
supplemental response to petitioner’s application for attorneys’ fees and costs. See Opp’n; Supp.
Opp’n. Respondent instead focuses her opposition on whether petitioner had a reasonable basis
for her claim.
2. Reasonable Basis
Respondent contends that the petition filed in the above-captioned case lacked a
reasonable basis. Unlike good faith, the reasonable basis requirement is “objective, looking not
at the likelihood of success [of a claim] but more to the feasibility of the claim.” Turner, 2007
WL 4410030, at *6 (quoting DiRoma v. Sec’y of HHS, No. 90-3277V, 1993 WL 496981, at *1
(Fed. Cl. Spec. Mstr. Nov. 18, 1993)). When a petitioner prevails on the merits, reasonable basis
is presumed. However, when a petitioner does not prevail on the merits, as in the present case,
the special master must determine whether the petition had a reasonable basis.
A special master may consider a number of factors when determining reasonable basis,
including the factual basis, medical support, jurisdictional issues, and the circumstances under
which a petition is filed. Turner, 2007 WL 4410030, at *6-8 (citations omitted).
To demonstrate a reasonable basis for a vaccine injury claim for purposes of §300aa–
15(e), a petitioner must demonstrate based on the totality of the circumstances that her claim was
feasible. See Turner, 2007 WL 4410030, at *6. “Feasibility,” not likelihood of success by a
preponderance of the evidence threshold, is the standard. See id.
Petitioner has failed to demonstrate that her claim was feasible. Petitioner alleged
throughout this proceeding that she had a vaccine reaction and that flu vaccine caused her to
have GBS. However, the medical records do not support petitioner’s claim that she had a
vaccine reaction or that she had GBS. See Decision 5-6. As respondent asserts, petitioner “was
never diagnosed with or treated for GBS,” nor did she report symptoms consistent with GBS.
Opp’n 2. Petitioner’s records show that she has longstanding osteoarthritis which predates her
flu vaccination. She had an unfortunate incident in December 2010 of her large dog dragging
her across the street in response to another dog barking, which injured her right hip. Petitioner’s
4
fractured right hip and osteoarthritic right knee containing a calcific loose body continued to
cause her pain, prompting Dr. Fish to recommend that she get her hip replaced. Petitioner
attributed her right hip pain to the flu vaccination she received two and one-half months earlier;
however, Dr. Fish noted that her right hip pain actually predated her vaccination and began one
year earlier. See Ex. A at 95. In addition, while petitioner believes that Dr. Garvie told her in
April 2012 that she had GBS, the medical record indicates that Dr. Garvie diagnosed her with
bronchitis. See id. at 59. There is no medical record in April 2012 or on any other date in which
a doctor diagnosed petitioner with GBS. Furthermore, there are no records showing petitioner
had more than six months of sweating or swelling due to flu vaccination. Nothing in petitioner’s
medical records substantiates petitioner’s allegations of a vaccine reaction. Petitioner’s
allegations alone are not sufficient to establish a reasonable basis for her vaccine injury claim.
42 U.S.C. § 300aa-13(a)(1). Therefore, the undersigned finds that petitioner did not have a
reasonable basis for her petition and is not entitled to an award of costs.
3. Pain and Suffering
In her reply, petitioner requests $12,000.00 for “[l]oss of mobility from severe BGS [sic]
pain.” Reply 1. Petitioner has confused costs with damages. Payment for pain and suffering is
not a cost incurred in a proceeding on a petition, as required by 42 U.S.C. § 300aa-15(e)(1). The
undersigned cannot make an award for pain and suffering based on a vaccine injury claim when
a petitioner has been denied entitlement to damages on the merits. In the above-captioned case,
petitioner’s petition was dismissed for failure to make a prima facie case and she was not entitled
to damages. See Decision 3. As such, even if petitioner could show that her petition had a
reasonable basis, she would not be entitled to any compensation for her pain and suffering.
III. Conclusion
Petitioner is not entitled to compensation for attorneys’ fees for expending her own time
as a pro se petitioner. Nor is petitioner entitled to receive reimbursement for her costs because
her claim lacked a reasonable basis. Petitioner’s application for attorneys’ fees and costs is
hereby DENIED. As such, petitioner is not entitled to an award for attorneys’ fees or costs. 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.3
IT IS SO ORDERED.
Dated: _________________________ ____________________________
Laura D. Millman
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party=s filing a notice
renouncing the right to seek review.
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