In the United States Court of Federal Claims
                            OFFICE OF SPECIAL MASTERS

*********************
LINDA ALVAREZ,                       *      No. 16-1438V
                                     *      Special Master Christian J. Moran
                  Petitioner,        *
v.                                   *
                                     *      Filed: May 1, 2018
SECRETARY OF HEALTH                  *
AND HUMAN SERVICES,                  *      Attorneys’ fees; reasonable basis.
                                     *
                  Respondent.        *
*********************
Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner;
Althea W. Davis, United States Dep’t of Justice, Washington, DC, for respondent.

  PUBLISHED DECISION DENYING ATTORNEYS’ FEES AND COSTS1

       On September 5, 2017, the undersigned issued a decision denying
compensation. Petitioner Linda Alvarez then filed an application for attorneys’
fees and costs. For the reasons set forth below, the undersigned finds the petition
was not supported by a reasonable basis and DENIES petitioner’s request for
attorneys’ fees and costs.

                       I.    Brief Factual and Procedural History

       At the age of 28, Ms. Alvarez had a medical history that included, among
other conditions, bipolar disorder and obesity. On November 13, 2013, she
received the influenza (“flu”) vaccination. On January 7, 2014, she underwent
gastric bypass surgery.


       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing
redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4).
Any redactions ordered by the special master will appear in the document posted on the website.
       On April 4, 2014, she told her doctor that she started to experience
numbness on her face, arms, and legs that morning. In other April appointments,
she also reported numbness and weakness. On April 29, 2014, she was diagnosed
with Guillain-Barré syndrome (“GBS”).

       According to an attorney’s timesheet Ms. Alvarez submitted with her
pending motion, she consulted her counsel of record, Randall Knutson, on
September 30, 2015. A paralegal collected medical records and Mr. Knutson
periodically reviewed them. Through Mr. Knutson, Ms. Alvarez filed the petition
on November 1, 2016, and medical records approximately two weeks later. The
petition set forth the same chronology of events as above (see Pet. ¶¶ 4-7), and
alleged that the flu vaccine caused Ms. Alvarez’s GBS.

       The Secretary addressed the petition’s allegations. The Secretary noted that
the interval between the vaccination and the apparent onset of neurologic problems
— “roughly five months” — “is medically unreasonable to infer that the vaccine
was the cause of the GBS.” Resp’t’s Rep., filed pursuant to Vaccine Rule 4, on
March 27, 2017, at 12. The Secretary also commented that Ms. Alvarez had not
identified any treating doctors who had opined that the vaccine caused her GBS
and had not obtained an expert report.

       Ms. Alvarez was ordered to obtain an expert report. However, she filed a
status report stating that a preliminary expert report was not favorable. Pet’r’s
Status Rep., filed July 17, 2017. She filed a motion to dismiss her petition. A
decision denying compensation was issued. Decision, 2017 WL 4365058 (Sept. 5,
2017).

       On January 2, 2018, Ms. Alvarez filed the pending motion for attorneys’
fees and costs, requesting $25,958.97. The supporting documents address the
amount requested in fees and costs. The motion does not provide any argument for
why she is eligible for an award of attorneys’ fees and costs.

      The Secretary opposes an award of any amount of attorneys’ fees and costs.
The Secretary argues Ms. Alvarez “has provided no evidence to satisfy the
[Vaccine] Act’s objective reasonable basis standard.” Resp’t’s Opp’n, filed Jan.
12, 2018, at 4.


                                         2
       Ms. Alvarez filed a reply arguing that “Counsel had a reasonable basis to file
the petition.” Pet’r’s Reply, filed Jan. 17, 2018, at 6. In support of his reasonable
basis, Mr. Knutson submitted a declaration in which he attests to several items,
including the following: (1) that Ms. Alvarez, his client, told him that she received
the flu vaccine in December 2013 and started having symptoms in February 2014,
and (2) that Ms. Alvarez told him that Dr. Gutierrez, one of her treating doctors,
told her that the flu vaccination caused her GBS. Ms. Alvarez contends that at the
time the petition was filed on November 1, 2016, which was 13 days before the
expiration of the statute of limitations, “Petitioner and counsel had a good faith
belief and legitimate hope that a medical opinion from her treating physicians or an
expert would be forthcoming.” Pet’r’s Reply, filed Jan. 17, 2018, at 6.

       The matter is now ripe for adjudication.

                             II.    Standards for Adjudication

       Even when a petitioner in the Vaccine Program does not prevail on his or
her claim and does not receive compensation, a special master may award
reasonable attorneys’ fees and other costs if “the petition was brought in good faith
and there was a reasonable basis for the claim for which the petition was brought.”
42 U.S.C. § 300aa-15(e)(1).

      “Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human
Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19,
2007). A petitioner acts in “good faith” if he or she honestly believes that a
vaccine injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V,
2007 WL 4410030, at * 5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The Secretary
does not contest that the petition was filed in good faith. Resp’t’s Opp’n at 3 n.3.
In contrast, the Secretary does contest the reasonable basis for this petition.

       The Federal Circuit emphasized that reasonable basis concerns “the claim
for which the petition was brought.” Simmons v. Secʼy of Health & Human
Servs., 875 F.3d 632, 636 (Fed. Cir. 2017) (emphasis in original).2 The evaluation
of reasonable basis “is an objective inquiry unrelated to counsel’s conduct.” Id.
       2
         Although the Secretary cited Simmons in his opposition, Ms. Alvarez does not discuss
that binding Federal Circuit precedent in her reply. Instead, she cites to several non-precedential
decisions without explaining how the phrases she extracts from those decisions remain viable
after Simmons.
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      An “objective inquiry” is an examination of evidence. See Chuisano v.
Sec’y of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at *8-10 (Fed.
Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 (2014).
Evidence that is relevant to determining whether there is reasonable basis for a
claim may include medical records, affidavits from percipient witnesses, and
opinions from retained experts. See 42 U.S.C. § 300aa–11(c).

       “The burden is on the petitioner to affirmatively demonstrate a reasonable
basis.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 305
(2011), decision on remand vacated, 2012 WL 1884703 (May 3, 2012).

                                 III.   Discussion

       Preliminarily, Ms. Alvarez has focused on the wrong issue. Her arguments
attempt to demonstrate that her attorney had a reasonable basis for filing the
petition. The Federal Circuit has rejected an argument that an attorney’s actions
can supplant an analysis whether there was “a reasonable basis for the merits of the
petitioner’s claim.” Simmons, 875 F.3d at 636.

      Here, the crux of Ms. Alvarez’s claim is that the November 13, 2013 flu
vaccination caused her to suffer GBS, which began in April 2014. At best, Ms.
Alvarez has established a temporal sequence in which the vaccination preceded the
onset of her condition. But, to establish reasonable basis, “[t]emporal proximity is
necessary, but not sufficient.” Chuisano v. Secʼy of Health & Human Servs., 116
Fed. Cl. 276, 287 (2014). Ms. Alvarez has not identified any evidence to support a
causal connection between the two events. Moreover, there was evidence of a
potential alternative cause of Ms. Alvarez’s GBS, her gastric bypass surgery in
January 2014. The absence of evidence means that there is no basis (reasonable or
otherwise) for the claim set forth in the petition. Without any evidence, Ms.
Alvarez fails the “objective inquiry” mandated by the Federal Circuit. Ms.
Alvarez, therefore, does not satisfy the reasonable basis standard.

        Regardless of whether they are in the form of an affidavit, the statements of
Ms. Alvarez’s attorney do not assist her in meeting the reasonable basis standard.
First, the Vaccine Act requires that special masters determine whether
preponderant evidence supports the claim in the petition by looking at “medical
records” or “medical opinion.” 42 U.S.C. § 300aa-13(a)(1). In doing so, Congress
                                          4
distinguished “medical records” and “medical opinion” from the “unsubstantiated”
claims of a petitioner alone. Id. Because Congress tied the reasonable basis
standard to the “claim for which the petition was brought,” 42 U.S.C. § 300aa-
15(e), the same types of evidence are relevant when looking at reasonable basis.
See Chuisano, 2013 WL 6234660, at *8-10 (analyzing statutory requirements for
filing a petition). Here, Mr. Knudsen’s statement that Ms. Alvarez told him that
Dr. Gutierrez told her that the flu vaccine caused her GBS is neither a “medical
record” nor a “medical opinion.”3

       Second, it cannot be the case that an attorney’s rendition, even under oath,
that “someone with a medical degree told me the vaccine harmed my client”
satisfies an objective inquiry. If the bar separating cases with a reasonable basis
from cases lacking a reasonable basis were set so low that an attorney’s self-
interested statement by itself could clear that threshold, the statutorily created
distinction would be meaningless. See Chuisano, 2013 WL 6234660, at *23; but
see Cottingham v. Secʼy of Health & Human Servs., No. 15-1291V, 2017 WL
6816709 (Fed. Cl. Spec. Mstr. Dec. 12, 2017) (finding, pursuant to a remand
issued before Simmons, that petitioner’s affidavit satisfies the reasonable basis
standard), mot. for rev. filed (Jan. 10, 2018).

       For these reasons, Ms. Alvarez has not established “a reasonable basis for
the claim for which the petition was brought.” This showing is a condition for an
award of attorneys’ fees and costs to a non-prevailing party. Without this showing,
Ms. Alvarez is not eligible for an award of attorneys’ fees and costs. Given this
outcome, there is no reason to determine whether the requested amount of
attorneys’ fees and costs is reasonable.




       3
         Moreover, Ms. Alvarez’s statement, which her attorney recounts in his affidavit, about
the temporal sequence is incorrect. Although Mr. Knutson attests that Ms. Alvarez told him that
she received the flu vaccination in December, she actually received it in November. Likewise,
although Mr. Knutson attests that Ms. Alvarez told him that she started having problems in
February, the medical records and the petition indicate that her neurologic problems began in
April.
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                                     IV.    Conclusion

      Ms. Alvarez’s request for attorneys’ fees and costs is DENIED. 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.4

       IT IS SO ORDERED.

                                                   s/Christian J. Moran
                                                   Christian J. Moran
                                                   Special Master




       4
         Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party,
either separately or jointly, filing a notice renouncing the right to seek review.

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