Vale Krenik, Parent of V.K., a Minor v. Secretary of Health and Human Services 0

In the United States Court of Federal Claims

No. 03-2755V

Filed: January 7, 2014

Not to be Published

**************************** VALE KRENIK, Parent of * V.K., a Minor, *

* Petitioner, * Autism; Interim Attorneys’ Fees and

* Costs

v. *

* SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

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

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1 On December 21, 2012, petitioner filed a motion for attorneys’ fees and costs incurred by petitioner’s former2 counsel. Respondent opposed the motion, arguing that the fees and costs should not be awarded due to their interim nature and respondent’s belief that the case was untimely filed. See Second Response, filed Jan. 9, 2013. Because the issue of whether attorneys’ fees and costs could be awarded in untimely filed cases was pending before the U.S. Supreme Court, the special masters deferred ruling on fee applications in approximately 1,000 Omnibus Autism Proceedings (“OAP”) cases. I deferred ruling on petitioner’s motions in this case. See First Order, issued May 1, 2013.

Following the Supreme Court’s decision,3 respondent’s counsel and petitioners’ counsel from the five law firms with the greatest number of pending motions discussed a procedure to avoid the lengthy litigation required to assess whether each case was filed in good faith and with a reasonable basis. Respondent will withdraw her objection to the payment of attorneys’ fees and costs in cases which were filed when the minor child was 78 months of age or younger with two caveats.4 Petitioners’ counsel will withdraw all motions for fees and costs in cases which were filed when the minor child was older than 78 months of age or which fall under either caveat. The procedure applies only to cases in the OAP and should not be construed as evidence that the parties are abandoning any legal arguments they may make in other cases.

Petitioner’s counsel in this case has decided to follow this procedure. Because the case was filed when the minor child was 78 months of age or younger and does not fall under either of respondent’s caveats, respondent has withdrawn her objection to payment of attorneys’ fees and costs. Additionally, respondent does not oppose the amount of fees and costs requested.

Because petitioner continues to pursue his claim as a pro se petitioner, any award of fees and costs would be interim in nature. Thus, this basis for respondent’s opposition still exists.

It is clear that interim fees and costs can be awarded under the Vaccine Act. See Shaw v. Sec’y, HHS, 609 F.3d 1372 (Fed. Cir. 2010); Avera v. Sec’y, HHS, 515 F.3d 1343 (Fed. Cir. 2008). Although I recognize that the withdrawal of counsel alone may not always provide sufficient justification for an award of interim fees and costs,5 I find that the facts in this case warrant such an award. Following my reasoning in other cases, I determine that the requisite good faith and reasonable basis exist. See, e.g., Lumsden v. Sec’y, HHS, No. 97-588, 2012 WL 1450520, at *2 (Fed. Cl. Spec. Mstr. Mar. 28, 2012). Similarly, this case has been pending for more than ten years and will continue for at least several more months. Id., at *2-4. Under these circumstances, petitioners have established a sufficient basis to warrant the award of fees and costs on an interim basis.

Petitioner seeks attorneys’ fees and costs in the amount of $3,730.00 for work performed by Conway, Homer & Chin-Caplan, P.C. and $200.00 for work performed by Williams Kherkher for a total of $3,930.00. In lieu of filing a Vaccine General Order #9 statement, petitioner’s former counsel represents that he will reimburse petitioner any costs that petitioner personally incurred that are compensable under § 15 (e)(1).

Pursuant to §15(e), I hereby award a lump sum of $3,930.006 to be paid in the form of a check payable jointly to the petitioner and petitioner’s former counsel, Conway, Homer & Chin-Caplan, P.C. The check shall be mailed to petitioner’s former counsel at the following address: Conway, Homer & Chin- Caplan, P.C., 16 Shawmut Street, Boston, MA 02116.

The Clerk shall mail a copy of this decision to petitioner at her address of record and another copy to petitioner’s former counsel at the address where the check is to be mailed.

In the absence of a timely-filed motion for review filed pursuant to Appendix B of the Rules of the U.S. Court of Federal Claims, the Clerk of the court shall enter judgment in accordance herewith.7 IT IS SO ORDERED.

_____________________ Denise K. Vowell Chief Special Master