    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 14-617V
                                     Filed: February 12, 2016
                                        Not for Publication

*************************************
ELISABETH SMIRNIOTIS,                      *
                                           *
                                           *
               Petitioner,                 *
                                           *               Interim attorneys’ fees and costs
 v.                                        *               decision based on stipulation of
                                           *               fact; counsel withdrawing from
SECRETARY OF HEALTH                        *               case
AND HUMAN SERVICES,                        *
                                           *
               Respondent.                 *
                                           *
*************************************
Robert. J. Krakow, New York, NY, for petitioner.
Ann D. Martin, Washington, DC, for respondent.

MILLMAN, Special Master


          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS 1

        On July 16, 2014, petitioner, through her parents, filed a petition under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10¬34 (2012) (“Vaccine Act”), alleging that
she suffered a neurological disorder and/or an autoimmune condition as a result of her receipt of
meningococcal and varicella vaccinations. No entitlement decision has been issued in this case.
On February 9, 2016, petitioner filed an application for interim attorneys’ fees and costs. For the
reasons outlined below, the undersigned awards petitioner $20,000 in interim attorneys’ fees and
costs.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s 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). 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.
                                   PROCEDURAL HISTORY

         On May 5, 2015, the undersigned ordered petitioners to file an expert report by July 6,
2015. After requesting, and being granted, several motions for extension of time, petitioners filed
another motion for extension of time on December 18, 2015, explaining that they were unable to
file an expert report, and asking for 31 days to “determine the appropriate course of action to be
taken in light of the posture of this case.” Mot. at 1. On January 18, 2016, petitioners filed a
status report saying they would like additional time to decide on the appropriate course of action to
take. On January 19, 2016, the undersigned set a status conference for January 29, 2016, to
discuss the case. On January 29, 2016, the undersigned sua sponte ordered the Clerk of Court to
change the case caption to reflect the fact that Elisabeth Smirniotis had turned eighteen years old in
2015. On the same date, the undersigned ordered petitioner to file a status report by February 5,
2016, saying whether she would be proceeding pro se or dismissing the case. On February 3,
2016, petitioner filed a status report explaining that petitioner’s counsel would be withdrawing
from the case, but that he would wait to file a motion to withdraw until petitioner found a new
attorney and he informally resolved his interim attorneys’ fees and costs with respondent. On
February 4, 2016, the undersigned ordered petitioner’s counsel to withdraw from the case by
February 12, 2016, clarifying that petitioner’s case is her main responsibility, not petitioner’s
counsel’s interim attorneys’ fees and costs issue.

        On February 9, 2016, petitioner filed a motion for interim attorneys’ fees and costs, asking
for $27,201.10 in interim attorneys’ fees and costs. On February 10, 2016, respondent filed her
response to petitioner’s interim motion, stating that the parties had reached an agreement that
$20,000 was an appropriate amount for Mr. Krakow’s work on this case, but that respondent
would like the undersigned to wait to award petitioner attorneys’ fees and costs until the
conclusion of the case. Resp. at 1. Respondent explained that “the only disputed issue is
whether under the circumstances of this case, [petitioner is] entitled to payment of attorneys’ fees
and costs on an interim basis. Id. Respondent stated that petitioner had not “identified any
special showing to justify an award of interim attorneys’ fees and costs,” such as a protracted
proceeding or hardship to petitioners. Id. at 4. Citing McKellar, respondent argues that the
withdrawal of petitioner’s counsel without any other special showing does not provide sufficient
grounds to justify an interim award. McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 302 (Fed. Cl.
2011).

         As the undersigned has found before, "[p]aying attorneys when their service is complete is
appropriate." Gabrielle v. Sec'y of HHS, No. 07-304V, 2011 WL 2445941, at *1 (Fed. Cl. Spec.
Mstr. May 26, 2011); see also Soto v. Sec'y of HHS, No. 09-897V, 2011 WL 2269423, at *4 (Fed.
Cl. Spec. Mstr. June 7, 2011) (fees paid upon counsel's withdrawal while entitlement pending).
The U.S. Court of Federal Claims and several special masters have found that an interim fee award
is appropriate when petitioner’s counsel withdraws from the case. Woods v. Sec'y of HHS, 105
Fed. Cl. 148, 154 (Fed. Cl. 2012) (Judge Williams affirmed the special master's award of interim
fees and suggested that when counsel withdraws, and it is unknowable how long case resolution
might take, an interim award may be appropriate); Becker v. Sec’y of HHS, No. 13-687V, 2014

                                                  2
WL 4923160, at *4 (Fed. Cl. Spec. Mstr. Sept. 11, 2014); Bear v. Sec'y of HHS, No. 11–362V,
2013 WL 691963, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2013); Lumsden v. Sec'y of HHS, No. 97–
588, 2012 WL 1450520, at *6 (Fed. Cl. Spec. Mstr. Mar. 28, 2012) (Special Master Vowell
awarded interim fees in an autism case over respondent's objection when petitioner's attorney was
withdrawing from the case); Edmonds v. Sec'y of HHS, No. 04–87V, 2012 WL 1229149, at *13
(Fed. Cl. Spec. Mstr. Mar. 22, 2012) (then-Chief Special Master Campbell–Smith awarded interim
fees over respondent's objection in an autism case in which petitioner's counsel was about to
withdraw).

        Respondent suggests that “a better course of action” is for the undersigned to issue an order
to show cause, and, if petitioner is unable to find an expert to support her case, dismiss the petition,
which would mean that petitioner would no longer be asking for interim fees and costs, but final
fees and costs. Resp. at 5, note 3. However, the undersigned needs to give petitioner an
opportunity to find new counsel if petitioner asks for the opportunity. She will also need to give
petitioner ample time to find an expert to opine on her case. Therefore “dismiss[ing] the petition”
is not as straightforward as respondent seems to suggest. Id.

        The undersigned finds that it is appropriate to award petitioner interim attorneys’ fees and
costs at this juncture in the case.

        In accordance with the General Order #9 requirement, petitioner asserts that she did not
incur any costs in pursuit of her petition. The undersigned finds this amount of interim attorneys’
fees and costs agreed upon by the parties in the stipulation to be reasonable. Accordingly, the
court awards $20,000.00, representing reimbursement for interim attorneys’ fees and costs. The
award shall be in the form of a check payable jointly to petitioner and the Law Office of Robert J.
Krakow, P.C. in the amount of $20,000.00.

        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. 2


IT IS SO ORDERED.


Dated: February 12, 2016                                                           s/ Laura D. Millman
                                                                                    Laura D. Millman
                                                                                      Special Master




2
  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.
                                                    3
