            In the United States Court of Federal Claims
                                           No. 09-386V
                                   Filed Under Seal: June 6, 2018
                               Reissued For Publication: July 9, 2018*

                                                  )
    FORREST Q. SPAHN,                             )
                                                  )
                         Petitioner,              )
                                                  )       National Childhood Vaccine Injury Act,
    v.                                            )       42 U.S.C. § 300aa–1 to –34 (2012);
                                                  )       Vaccine Rule 8; Attorney’s Fees; Waiver.
    SECRETARY OF HEALTH AND                       )
    HUMAN SERVICES,                               )
                                                  )
                         Respondent.              )
                                                  )

         Paul S. Dannenberg, Esq., Counsel of Record, Huntington, VT, for petitioner.

       Voris E. Johnson, Jr., Senior Trial Attorney, Heather L. Pearlman, Assistant Director,
Catharine E. Reeves, Deputy Director, C. Salvatore D’Alessio, Acting Director, Chad A.
Readler, Acting Assistant Attorney General, Torts Branch, Civil Division, United States
Department of Justice, Washington, DC, for respondent.

                           MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.       INTRODUCTION

         Respondent, the Secretary of Health and Human Services (the “Secretary”), seeks review
of the December 13, 2017, decision of the special master awarding attorneys’ fees and costs in
the amount of $162,044.12 to petitioner, pursuant to Section 15(e) of the National Childhood
Vaccine Injury Act (“Vaccine Act”). 42 U.S.C. § 300aa–15(e). For the reasons set forth below,
the Court: GRANTS-IN-PART and DENIES-IN-PART the Secretary’s motion for review of


*
 This Memorandum Opinion and Order was originally filed under seal on June 6, 2018 (docket entry no.
188). The parties were given an opportunity to advise the Court, by July 6, 2018, of their views with
respect to what information, if any, should be redacted. The parties filed a joint status report on July 5,
2018 (docket entry no. 190), in which petitioner requested certain redactions which the Court has adopted.
And so, the Court reissues the Memorandum Opinion and Order dated June 6, 2018, with the agreed upon
redactions indicated by three consecutive asterisks within brackets ([***]).
the special master’s December 13, 2017, decision and SUSTAINS the decision of the special
master.

II.       FACTUAL AND PROCEDURAL BACKGROUND1

          A.     Factual Background

                 1. Case Overview

          In this Vaccine Act matter, petitioner, Forrest Q. Spahn, alleges that the tetanus-
diphtheria (“Td”) vaccine that he received on June 19, 2007, caused a significant aggravation of
his [***]. See Spahn v. Sec'y of HHS, 133 Fed. Cl. 588, 591 (2017); see generally Petition. The
relevant facts and medical history regarding petitioner’s Vaccine Act claim are set forth in the
Court’s July 27, 2017, decision denying petitioner’s previous motions for review in this matter
and remanding this case to the special master. See Spahn, 133 Fed Cl. at 591-95.

          Specifically relevant to the current dispute, on September 11, 2014, the special master
granted the Secretary’s motion for summary judgment and dismissed petitioner’s claim. See
Spahn v. Sec’y of HHS, No. 9-386V, 2014 WL 12721080, at *19 (Fed. Cl. Spec. Mstr. Sept. 11,
2014). Petitioner, subsequently, filed a motion for review of, among other things, the special
master’s dismissal decision. See Pet’r Mot. for Rev.

          On July 27, 2017, the Court: (1) denied petitioner’s motion for review and sustained the
September 11, 2014, decision of the special master; (2) denied petitioner’s motion for review of
the special master’s October 29, 2014, decision on petitioner’s motion to redact certain
information from the special master’s September 11, 2014, decision and sustained the decision of
the special master; (3) denied petitioner’s motion for leave to file new evidence; and (4)
remanded this case to the special master, for a period of 90 days, for the special master to resolve
petitioner’s pending motions for fees and costs. See Spahn, 133 Fed. Cl. at 606-07.




1
  The facts recounted in this Memorandum Opinion and Order are taken from the petitioner’s motion for
attorneys’ fees (“Pet’r Mot. for Att’y Fees”); the Secretary’s response to petitioner’s motion for attorneys’
fees (“Resp’t Resp. to Pet’r Mot. for Att’y Fees”); the special master’s December 13, 2017, Decision
(“December 13, 2017, Decision”); and the Court’s July 27, 2017, Decision (“July 27, 2017, Decision”).
Except where otherwise noted, the facts recited herein are undisputed.


                                                                                                           2
        During the remand proceedings before the special master, the special master awarded
petitioner interim attorneys’ fees and costs in the amount of $14,650.00, on September 14, 2017.
See generally Judgment.

        On October 11, 2017, petitioner filed an application for attorneys’ fees and costs. See
generally Pet’r Mot. for Att’y Fees. In the application, petitioner requested attorneys’ fees and
costs in the amount of $162,044.12. Id. In support of the application, petitioner also filed
exhibits explaining the amount of attorney hours expended, the costs incurred, and the applicable
attorney hourly rates. See id. at 2, Ex. 3-5. Petitioner also submitted affidavits from his attorney
in support of the attorney’s legal experience and hourly rates, as well as affidavits from other
practicing attorneys in same jurisdiction, attesting to the average hourly rate within the area. See
id. at Ex. 1-2.

        On October 20, 2017, the Secretary filed a response to petitioner’s motion for attorneys’
fees and costs. See Resp’t Resp. to Pet’r Mot. for Att’y Fees. In the response, the Secretary
argued that both the Vaccine Act and the Vaccine Rules require the special master to make a
reasonableness determination before awarding attorneys’ fees and costs, and that neither the
Vaccine Act nor the Vaccine Rules contemplate “any role for respondent in the resolution of a
request by petitioner for an award of attorneys’ fees and costs.” See id. at 1-2.

        In addition, the Secretary stated that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” See id. at 2. And so, the Secretary
recommended that the special master “exercise his discretion and determine a reasonable award
for attorneys’ fees and costs.” See id. at 3.

                  2. The Special Master’s December 13, 2017, Decision

        On December 13, 2017, the special master issued a decision awarding attorneys’ fees and
costs in the amount of $162,044.12 to petitioner (the “December 13, 2017, Decision”). See
generally Spahn v. Sec’y of HHS, No. 9-386V, 2017 WL 6945560 (Fed. Cl. Spec. Mstr. Dec. 13,
2017). In the decision, the special master found that petitioner was eligible for an award of
attorneys’ fees and costs, because there was a reasonable basis for petitioner’s Vaccine Act claim
and petitioner brought the claim in good faith. See id. at *1.




                                                                                                    3
        Based upon the rationale articulated in Swintosky v. Sec’y of Health and Human Servs.,
the special master also determined that the Secretary “waived any objections to the amount of
fees requested,” because the Secretary did not raise any objection to the fees and costs requested
by petitioner and the Secretary recommended the special master “‘exercise his discretion’” in
determining the reasonableness of the award without raising “any specific objections.” See id.;
see also Swintosky v. Sec’y of HHS, No. 12-403V, 2017 WL 5899239, at *2, *6 (Fed. Cl. Spec.
Mstr. Nov. 6, 2017).2 The special master did not address whether the amount of attorneys’ fees
and costs requested by petitioner were reasonable. See Pet’r Resp. to Resp’t Mot. for Rev. at 1;
see generally Spahn, No. 9-386V, 2017 WL 6945560. Nonetheless, the special master granted in
full petitioner’s request for $162,044.12 in attorneys’ fees and costs. See Spahn, No. 9-386V,
2017 WL 6945560, at *1.

        The Secretary, alleging error, seeks review of the special master’s decision.

        B. Relevant Procedural History

        The extensive procedural history for this matter is set forth in the Court’s July 27, 2017,
Memorandum Opinion and Order. See Spahn, 133 Fed. Cl. at 595. Specifically relevant to the
motion under review, the Secretary filed a motion for review of the special master’s December
13, 2017, Decision on January 12, 2018, as well as a memorandum in support thereof. See
Resp’t Mot. for Rev. Petitioner filed a response and opposition to the Secretary’s motion for
review on February 11, 2018. See Pet’r Resp. to Resp’t Mot. for Rev.

        On February 28, 2018, the Court ordered the parties to file supplemental briefs on
whether any or all of the arguments raised in the Secretary’s motion for review have been waived
pursuant to Vaccine Rule 8(f). See Order, Feb. 28, 2018. The Secretary filed a supplemental
brief on March 30, 2018. See Resp’t Supp. Br. Petitioner filed a response to the Secretary’s
supplemental brief on April 28, 2018. See Pet’r Resp. to Resp’t Supp. Br.




2
  In Swintosky, the special master granted in full the petitioner’s application for attorneys’ fees and costs
after finding that the Secretary intentionally followed “a practice of not presenting objections” to fee
applications. Swintosky v. Sec’y of HHS, No 12-403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6,
2017), at *6. The special master also concluded that the Secretary’s failure to raise any objection to
petitioner’s fee application “could be interpreted as a waiver” and the special master found that he was
not required to “challenge fee applications sua sponte.” See id. at *5.

                                                                                                                4
       The motion for review having been fully briefed, the Court resolves the pending motion.

III.   LEGAL STANDARDS

       A.      Vaccine Act Claims

       The United States Court of Federal Claims has jurisdiction to review the record of the
proceedings before a special master and, upon such review, may:

       (A) uphold the findings of fact and conclusions of law of the special master and
           sustain the special master’s decision,

       (B) set aside any findings of fact or conclusion of law of the special master found
           to be arbitrary, capricious, an abuse of discretion, or otherwise not in
           accordance with law and issue its own findings of fact and conclusions of law,
           or

       (C) remand the petition to the special master for further action in accordance with
       the court’s direction.

42 U.S.C. § 300aa–12(e)(2). The special master’s determinations of law are reviewed de novo.
Andreu ex rel. Andreu v. Sec’y of HHS, 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special
master’s findings of fact are reviewed for clear error. Id. (citation omitted); see also
Broekelschen v. Sec’y of HHS, 618 F.3d 1339, 1345 (Fed. Cir. 2010) (“We uphold the special
master’s findings of fact unless they are arbitrary or capricious.”). The special master’s
discretionary rulings are reviewed for abuse of discretion. Munn v. Sec’y of HHS, 970 F.2d 863,
870 n.10 (Fed. Cir. 1992).

       In this regard, the Court has held that the applicable standard of review in Vaccine Act
cases challenging a special master’s determination regarding reasonable attorneys’ fees is abuse
of discretion. Scharfenberger v. Sec’y of HHS, 124 Fed. Cl. 225, 231 (2015); Dominguez v.
Sec’y of HHS, 136 Fed. Cl. 779, 2018 WL 1514447 (2018). This Court will find an abuse of
discretion only where the special master's decision is clearly unreasonable, based upon an
erroneous conclusion of law, rests on erroneous fact finding, or based on a record without
evidence to support the special master’s decision. See Ninestar Tech. Co. v. ITC, 667 F.3d 1373,
1379 (Fed. Cir. 2012) (quoting Genentech, Inc. v. ITC, 122 F.3d 1409, 1415 (Fed. Cir. 1997)).

       In addition, when disputing a special master’s determination, this Court requires
particular, factual demonstrations of error in the special master’s conclusions. See Davis v. Sec'y

                                                                                                   5
of HHS, 105 Fed. Cl. 627, 639 (2012) (“[G]eneric statements cannot substitute for a factual
showing of how the special master allegedly abused his discretion . . . .”).

          In addition, a special master’s findings regarding the probative value of the evidence and
the credibility of witnesses will not be disturbed so long as they are “supported by substantial
evidence.” Doe v. Sec’y of HHS, 601 F.3d 1349, 1355 (Fed. Cir. 2010) (citation omitted); see
also Burns v. Sec’y of HHS, 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that the decision of
whether to accord greater weight to contemporaneous medical records or later given testimony is
“uniquely within the purview of the special master”). This “level of deference is especially apt
in a case in which the medical evidence of causation is in dispute.” Hodges v. Sec’y of HHS, 9
F.3d 958, 961 (Fed. Cir. 1993). And so, the Court will not substitute its judgment for that of the
special master, “if the special master has considered all relevant factors, and has made no clear
error of judgment.” Lonergan v. Sec’y of HHS, 27 Fed. Cl. 579, 580 (1993).

          B.       Section 15(e)

          Section 15(e)(1) of the Vaccine Act governs the award of attorneys’ fees and costs in
Vaccine Act matters.3 42 U.S.C. § 300aa-15(e)(1). When a special master awards compensation
to a petitioner pursuant to Section 15(e), the Vaccine Act directs the special master to award
“reasonable attorneys’ fees, and other costs, incurred in any proceeding on such petition. . . .” Id.
If the petitioner does not prevail on his or her claim—and is, thus, denied compensation—the
special master “may award an amount of compensation to cover petitioner's reasonable
attorneys’ fees and other costs incurred in any proceeding on such petition if the special master


3
    Section 15(e)(1) provides that:
          In awarding compensation on a petition filed under section 300aa-11 of this title the special
          master or court shall also award as part of such compensation an amount to cover–
               (A) reasonable attorneys' fees, and
               (B) other costs,
          incurred in any proceeding on such petition. If the judgment of the United States Court of
          Federal Claims on such a petition does not award compensation, the special master or court
          may award an amount of compensation to cover petitioner's reasonable attorneys' fees and
          other costs incurred in any proceeding on such petition if the special master or court
          determines that 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).

                                                                                                          6
or court determines that the petition was brought in good faith and there was a reasonable basis
for the claim for which the petition was brought.” Id.; see also Sebelius v. Cloer, 133 S. Ct.
1886, 1893 (2013); Saxton v. Sec’y of HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993). And so, the
Vaccine Act affords the special master discretion regarding whether to award attorneys’ fees and
costs when the special master denies compensation. Saxton, 3 F.3d at 1520.

        Within the context of a petition brought under the Vaccine Act, “good faith” is a
subjective standard, and the Court has held that the good faith standard focuses on whether the
petitioner “honestly believed he had a legitimate claim for compensation.” Turner v. Sec’y of
HHS, No. 99-544V, 2007 WL 5180524, at *2 (Fed. Cl. Aug. 31, 2007) (citing Di Roma v. Sec’y
of HHS, No. 90-3277V, 1993 WL 496981, at *1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993)). With
respect to determining whether “there was a reasonable basis for the claim,” this Court has also
held that a petitioner must prove, by “something less than preponderant evidence,” that he or she
had a reasonable basis for filing the claim. Chuisano v. United States, 116 Fed. Cl. 276, 289
(2014); McKellar v. Sec’y of HHS, 101 Fed. Cl. 297, 305 (2011). But, “[n]either the Federal
Circuit nor this Court has had occasion to define . . . ‘reasonable basis’ for purposes of fee
awards under the Vaccine Act.” Woods v. Sec’y of HHS, 105 Fed. Cl. 148, 153 (2012); see also
Chuisano, 116 Fed. Cl. at 285 (holding that the reasonable basis standard is “amorphous” and
“not rigidly defined”).4

        In addition, the burden is initially placed upon the petitioner to provide “satisfactory
evidence—in addition to the attorney’s own affidavits—that the requested rates are in line with
those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541
(1984); see also Wasson v. Sec’y of HHS, 24 Cl. Ct. 482, 484, aff’d, 988 F.2d 131 (Fed. Cir.
1993) (“The petitioner bears the burden of establishing the hours expended, the rates charged,
and the expenses incurred.”) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76
L.Ed.2d 40 (1983)); Torday v. Sec’y of HHS, No. 07–372V, 2011 WL 2680687, at *7 (Fed. Cl.


4
 This Court has looked to the totality of the circumstances to determine whether a petitioner’s claim had
a reasonable basis at the time the petition was filed. Simmons v. Sec’y of HHS, 128 Fed. Cl. 579, 583
(2016) (applying a totality of the circumstances test in reviewing reasonable basis of claim); McKellar v.
Sec’y of HHS, 101 Fed. Cl. 297, 303 (2011) (“The presence of a reasonable basis is an objective
consideration determined by the totality of the circumstances.”) (citation omitted).

                                                                                                             7
Spec. Mstr. Apr. 7, 2011) (citation omitted) (“[I]t is clear that petitioner bears the burden of
proof, and respondent in fact is not required to make any objection for the special master to deny
fees and costs . . . .”). “In determining attorneys’ fees, the special master is not limited to the
objections raised by respondent.” Lamar v. Sec’y of HHS, No. 99–583V, 2008 WL 3845165, at
*5 (Fed. Cl. Spec. Mstr. July 30, 2008) (citing Moorhead v. United States, 18 Cl. Ct. 849, 854
(1989)).

       To calculate such fees, the United States Court of Appeals for the Federal Circuit has
endorsed the lodestar method. See Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343,
1349 (Fed. Cir. 2008); Scharfenberger, 124 Fed. Cl. at 231; Dominguez, 2018 WL 1514447, at
*3. Under the lodestar method, a special master first determines an initial estimate of reasonable
fees by multiplying the number of hours reasonably expended by a reasonable hourly rate.
Avera, 515 F.3d at 1347-48. After making the initial estimate, the special master “may then
make an upward or downward departure to the fee award based on other specific findings.” Id.
at 1348. And so, special masters are given “reasonably broad discretion when calculating
[awards of attorneys’ fees and expenses].” Wasson, 24 Cl. Ct. at 483 (citing Hensley, 461 U.S. at
437); Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558, 130 S. Ct. 1662, 176 L.Ed.2d 494
(2010) (internal quotation marks omitted) (holding that the determination of reasonable
attorneys’ fees is “committed to the sound discretion of a trial judge . . . but the judge’s
discretion is not unlimited. It is essential that the judge provide a reasonably specific explanation
for all aspects of a fee determination, including any award of an enhancement.”).

       C.      Vaccine Rule 8

       Vaccine Rule 8(f) addresses the waiver of a fact or argument on review of a special
master’s decision. Specifically, this rule provides that:

       (f) Waiver of a Fact or Argument.

            (1) In General. Any fact or argument not raised specifically in the record
            before the special master will be considered waived and cannot be raised by
            either party in proceedings on review of a special master’s decision.

            (2) Exception. This rule does not apply to legal arguments raised by the party
            that stands in the role of the appellee on review.



                                                                                                      8
Vaccine Rule 8(f). The Federal Circuit has held that any argument that is not raised specifically
in the record before the special master will be considered waived under Vaccine Rule 8(f) and
cannot be raised by either party in proceedings on review of a special master’s decision. Davis v.
Sec’y of HHS, 409 Fed. App’x. 342, 344 (Fed. Cir. 2011) (declining to consider arguments
challenging the constitutionality of the Vaccine Act’s statute of limitations on appeal because the
arguments were not raised before the special master); Weddel v. Sec’y of HHS, 23 F.3d 388, 390
n.2. (Fed. Cir. 1994) (noting that any argument not raised before the special master shall be
considered waived under Vaccine Rule 8(f)); see also McMillan v. Sec’y of HHS, 26 Cl. Ct. 357,
358-59 (1992) (holding that respondent waived right to raise specific objections to a fee petition
under Vaccine Rule 8(f), when respondent failed to raise any objections to the petition during the
proceedings before the special master).

IV.    LEGAL ANALYSIS

       In his petition for review, the Secretary argues that the special master “abused his
discretion when he failed to make a finding regarding the reasonableness of petitioner’s
application for attorneys’ fees and costs.” See Resp’t Mot. for Rev. at 1. In addition, the
Secretary argues that the special master’s decision not to make an independent determination
regarding the reasonableness of petitioner’s application for attorneys’ fees and costs constitutes
an “improper abdication of [the special master’s] duty” under the Vaccine Act. See Resp’t Mot.
for Rev. Memo. at 4. And so, the Secretary requests that the Court set aside the special master’s
December 13, 2017, Decision and remand this matter to the special master for a determination on
the reasonableness of petitioner’s attorneys’ fees and costs. See id. at 20.

       Petitioner counters that the Court should not set aside the special master’s December 13,
2017, Decision, because doing so would prejudice petitioner, and that the Secretary has waived
any arguments disputing the award of the full amount of his attorneys’ fees and costs under
Vaccine Rule 8(f). See Pet’r Resp. to Resp’t Mot. for Rev. at 2-7. Petitioner also argues that the
Court should deny the Secretary’s motion for review, because petitioner has provided sufficient
evidence to show the reasonableness of his attorneys’ fees and costs, and the special master
determined the reasonableness of these fees and costs, when the special master addressed
petitioner’s request for an award of interim fees and costs. Id. at 7-9.



                                                                                                     9
       For the reasons discussed below, the evidentiary record in this matter shows that the
Secretary has not waived the argument that the special master abused his discretion by failing to
make a determination regarding the reasonableness of petitioner’s application for attorneys’ fees
and costs. The evidentiary record also shows that the special master abused his discretion by
awarding attorneys’ fees and costs to petitioner without making a determination about the
reasonableness of the fees and costs.

       In addition, the evidence in this matter shows that special master’s error was harmless,
because petitioner has put forward sufficient evidence to demonstrate that the amount of
attorneys’ fees and costs awarded by the special master is reasonable. And so, the Court grants-
in-part and denies-in-part the Secretary’s motion for review and sustains the decision of the
special master to grant in full petitioner’s request for $162,044.12 in attorneys’ fees and costs.

       A.      The Secretary Has Not Waived His Argument

       In his motion for review, the Secretary seeks to set aside the special master’s decision to
award attorneys’ fees and costs to petitioner upon the ground that the special master abused his
discretion by failing to make an independent finding regarding the reasonableness of petitioner’s
attorneys’ fees and costs. Resp’t Mot. for Rev. at 1. Because the Vaccine Rules, generally,
require that any argument not previously raised by a party in front of the special master not be
considered on review by this Court, the Court first examines whether the Secretary can raise this
argument in his motion for review. See Vaccine Rule 8(f).

       In this regard, the Secretary argues that he may raise the argument presented in the
motion for review, because he “explicitly raised the central argument presented in his [motion
for review]” during the proceedings before the special master. Resp’t Supp. Br. at 2.
Specifically, the Secretary contends that he argued during the proceedings before the special
master that “neither the Vaccine Act nor the Vaccine Rules require [him] to file a response to a
fee application” and that “the special master’s duty to determine a reasonable award of attorneys’
fees and costs operates independently from whether or not [the Secretary] raises any objection(s)
to the application.” Id. And so, the Secretary also contends that he has properly preserved this
argument for the Court to conduct its review. Id. at 1-4. The Court agrees.




                                                                                                     10
       It is well-established that Vaccine Rule 8(f) provides that any fact or argument not raised
by the party in front of the special master cannot be considered on review by this Court. See
Vaccine Rule 8(f). Specifically, this rule provides that:

       (f) Waiver of a Fact or Argument.

           (1) In General. Any fact or argument not raised specifically in the record before
           the special master will be considered waived and cannot be raised by either
           party in proceedings on review of a special master’s decision.

           (2) Exception. This rule does not apply to legal arguments raised by the party
           that stands in the role of the appellee on review.

Id. And so, to raise the argument that the special master abused his discretion by failing
to make an independent reasonableness assessment, the Secretary must point to specific
evidence in the record to show that this argument has been “adequately presented to the
special master.” See Davis, 409 F. App'x at 344.
       The evidentiary record shows that, in his October 20, 2017, response to petitioner’s
application for attorneys’ fees and costs, the Secretary argued that:

       Neither the Vaccine Act nor Vaccine Rule 13 contemplates any role for respondent
       in the resolution of a request by a petitioner for an award of attorneys’ fees and
       costs.

       Indeed, as the Court of Federal Claims has recently held, in the Vaccine Program
       “‘it is clear that petitioner bears the burden of proof, and respondent in fact is not
       required to make any objection for the special master to deny fees and costs. . . .’”
Resp’t Resp. to Pet’r Mot. for Att’y Fees at 1 (quoting Scharfenberger, 124 Fed. Cl. at 234 ).
And so, the evidentiary record makes clear that the Secretary presented the argument that he had
no obligation to raise any objections to petitioner’s fee application before the special master. Id.

       The evidentiary record also shows that the Secretary presented the argument that the
special master has an independent duty to make a reasonableness determination regarding
petitioner’s application for attorneys’ fees and costs to the special master. In his response to
petitioner’s fee application, the Secretary argued that “[t]he Federal Circuit has made it clear that
‘the determination of the amount of reasonable fees is within the special master’s discretion.’”
Id. at 2 (quoting Saxon v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993)). The Secretary also




                                                                                                   11
requested that the special master “exercise his discretion in this case and determine a reasonable
award for attorneys’ fees and costs.” Id. at 3.

        But, as petitioner correctly observes in his response and opposition to the Secretary’s
motion for review, the Secretary did not specifically raise the argument that the Secretary’s
approach to fee litigation is rooted in Supreme Court and Federal Circuit case law during the
proceedings before the special master. Pet’r Resp. to Resp’t Mot. for Rev. at 5-7; see generally
Resp’t Resp. to Pet’r Fee App. Nonetheless, the Court finds that the Secretary’s argument in this
regard simply expands upon the core argument that the Secretary did present to the special
master—that the special master must independently determine the reasonableness of petitioner’s
fee application under the Vaccine Act regardless of whether the Secretary raises any objections
to the application. Resp’t Resp. to Pet’r Fee App at 1-3. And so, the Court concludes that the
Secretary has not waived the argument that he raises in the motion for review under Vaccine
Rule 8(f).

        B.      The Special Master Abused His Discretion

        Because the Court concludes that the Secretary has not waived the argument that the
special master abused his discretion by failing to make a reasonableness determination regarding
petitioner’s application for attorneys’ fees and costs, the Court next examines whether the special
master erred in failing to make such a determination before awarding these fees and costs to
petitioner in this case.

        In the motion for review, the Secretary argues that he has no obligation to make any
objections to petitioner’s application for fees and costs under the Vaccine Act, and that the
special master must exercise discretion to determine the reasonableness of fees and costs
requested, even when the Secretary declines to make objections to the fee application. Resp’t
Mot. for Rev. Memo. at 5-12.5 For the reasons discussed below, the Court agrees that the special
master has an independent obligation to make a determination regarding the reasonableness of


5
  The Secretary also makes several other arguments to support why he has no obligation to object to fee
applications under the Vaccine Rules and Supreme Court and Federal Circuit precedent. Resp’t Mot. for
Rev. Memo. at 5-12. Because the Court reads the Vaccine Act to require that the special master
independently make a reasonableness determination regardless of whether the Secretary makes objections
to a fee application, the Court does not address these arguments.


                                                                                                    12
petitioner’s application for attorneys’ fees and costs. And so, the Court grants the Secretary’s
motion for review with respect to this issue for the reasons discussed below.

       To determine whether the Vaccine Act requires that special masters independently
determine the reasonableness of a fee application, the Court must begin its analysis by examining
the text of the Vaccine Act’s attorneys’ fee provision set forth in Section 15(e) of the Act.
Flowers v. Sec’y of HHS, 49 F.3d 1558, 1560 (Fed. Cir. 1995) (statutory interpretation begins
with the language of the statute); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S. Ct.
941, 151 L.Ed.2d 908 (2002) (in a statutory construction analysis, the first step is “‘to determine
whether the language at issue has a plain and unambiguous meaning with regard to the particular
dispute in the case.”) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S. Ct. 843, 136
L.Ed.2d 808 (1997)). A reading of Section 15(e) makes clear that the Vaccine Act requires that
special masters independently determine whether attorneys’ fees and costs are reasonable before
awarding such fees and costs.

       In this regard, Section 15(e)(1) provides that:

       In awarding compensation on a petition filed under section 300aa-11 of this title
       the special master or court shall also award as part of such compensation an amount
       to cover—

               (A) reasonable attorneys’ fees, and

               (B) other costs,

       incurred in any proceeding on such petition. If the judgment of the United States
       Court of Federal Claims on such a petition does not award compensation, the
       special master or court may award an amount of compensation to cover petitioner's
       reasonable attorneys’ fees and other costs incurred in any proceeding on such
       petition if the special master or court determines that 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). Section 15(e) expressly states that “the special master or court shall
also award” reasonable attorneys’ fees and other costs when awarding compensation on a
petition. Id. This statutory provision similarly provides that “the special master or court may
award” such fees and costs when no compensation is awarded to a petitioner. Id. And so, the
Court reads Section 15(e) to clearly place a duty upon the special master or the Court to


                                                                                                   13
independently determine whether the amount of the attorneys’ fees and other costs requested is
reasonable. 42 U.S.C. § 300aa-15(e)(1).

       The Court’s reading of Section 15(e) is reinforced by the case law in this area. In Saxton
v. Sec’y of HHS, the Federal Circuit recognized that the Vaccine Act’s attorneys’ fees provision
requires that “the trial forum must determine what fee is ‘reasonable.’” Saxton, 3 F.3d at 1521.
The Federal Circuit has also held that special masters have wide discretion in determining the
amount of reasonable attorneys’ fees and that the special masters’ determinations are afforded
deference. Id.; see also Perreira v. Sec'y of Dep't of HHS, 27 Fed. Cl. 29, 34 (1992), aff'd, 33
F.3d 1375 (Fed. Cir. 1994); Hines on Behalf of Sevier v. Sec’y of Dep’t of HHS, 22 Cl. Ct. 750,
753 (1991).

       This Court has also recently held that a special master abused his discretion by failing to
conduct an independent review and make a determination regarding whether a fee award met the
Vaccine Act’s reasonableness requirement. Dominguez, 2018 WL 1514447, at *4. Other courts
have similarly interpreted other federal statutes that provide for the award of reasonable
attorneys’ fees to require that the trial forum independently determine whether the amount of
attorneys’ fee and costs requested is reasonable. See, e.g., Broyles v. Dir., Office of Workers’
Comp. Programs, 974 F.2d 508, 510 (4th Cir. 1992) (citing the Longshore and Harbor Workers’
Compensation Act’s requirement that fees awarded be reasonable and holding that the trial court
has the responsibility to determine whether fees sought are reasonable); Jordan v. Mark IV Hair
Styles, 806 F.2d 695, 697-98 (6th Cir. 1986) (citing the Civil Rights Attorney’s Fees Awards Act
and holding that even where there is no objection that the trial court has the responsibility to
ensure the award is reasonable); Am. Petroleum Inst. v. EPA, 72 F.3d 907, 911-12 (D.C. Cir.
1996) (citing the Clean Air Act, holding that courts “are duty bound to recall that Congress
required [them] to exercise [their] independent judgment on reasonableness of fees requested
before taxing them against the United States”). The special master’s duty to independently
determine the reasonableness of requested attorneys’ fees is also consistent with the well-
established principal that the special master has discretion to “adjust an attorney fee award
downward sua sponte, even if the opposing party has not lodged an objection in support of the
reduction.” Dominguez, 2018 WL 1514447, at *4; see also Sabella, 86 Fed. Cl. at 208-09
(rejecting argument that sua sponte reduction in fees deprives the fee applicant the ability to
offer evidence in support of the reasonableness of her request); Scharfenberger, 124 Fed. Cl. at
                                                                                                   14
234 (noting that “‘petitioner bears the burden of proof, and respondent in fact is not required to
make any objection for the special master to deny fees and costs’”).

        Indeed, this duty is also in accordance with the Court’s Vaccine Rules. As this Court
recently recognized, Vaccine Rule 13, which addresses the award of attorneys’ fees and costs,
imposes no obligation on the Secretary to respond to fee applications. Dominguez, 2018 WL
1514447, at *5; see also Vaccine Rule 13. Similarly, “[Vaccine] Rule 20 does not provide that a
failure to respond [to a fee application] will result in a default ruling as to an application for an
award of attorneys’ fees.” Id. at *5.

        Given this, the record evidence in this case shows that the special master abused his
discretion by failing to make an independent determination regarding the reasonableness of
petitioner’s application for attorneys’ fees and costs before granting in full petitioner’s
application. See generally December 13, 2017, Decision.

        C.      The Special Master’s Error Was Harmless
                Because Petitioner’s Fees And Costs Are Reasonable
        While the record evidence makes clear that the special master erred in awarding
attorneys’ fees and costs to petitioner, without first making a determination that the amount of
these fees and costs were reasonable, the record evidence in this matter also shows that this error
was harmless because the amount of attorneys’ fees and costs awarded to petitioner is
reasonable.

        It is well-established that petitioner bears the burden of proving that the amount of the
attorneys’ fees that he seeks is reasonable. See Lolley v. United States, 18 Cl. Ct. 498, 507
(1989) (“The fee applicant carries the burden of proof.”).6 And so, petitioner must provide
“satisfactory evidence—in addition to the attorney’s own affidavits—that the requested rates are
in line with those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” Blum, 465 U.S. at 895 n.11; see also Wasson, 24
Cl. Ct. at 484 (“The petitioner bears the burden of establishing the hours expended, the rates


6
  The Court determined in the July 27, 2017, Memorandum Opinion and Order that petitioner was eligible
to recover reasonable attorneys’ fees and costs under Section 15(e) of the Vaccine Act, because petitioner
brought this action in good faith and there was a reasonable basis for petitioner’s claim. Spahn v. Sec'y of
HHS, 133 Fed. Cl. 588, 605 (2017).


                                                                                                         15
charged, and the expenses incurred.”) (citing Hensley, 461 U.S. at 437); see also Torday, 2011
WL 2680687 at *7 (“[I]t is clear that petitioner bears the burden of proof, and respondent in fact
is not required to make any objection for the special master to deny fees and costs . . .”);
Hensley, 461 U.S. at 433-34 (quoting Copeland v Marshall, 205 U.S. App. D.C. 390, 401 (D.C.
Cir. 1980)) (petitioner’s counsel must make a good-faith effort to exclude hours that are
“excessive, redundant, or otherwise unnecessary” as “[h]ours that are not properly billed to one’s
client also are not properly billed to one’s adversary pursuant to statutory authority.”).

        In addition, the Federal Circuit has endorsed the lodestar method to calculate attorneys’
fees. See Avera, 515 F.3d at 1347. Under this method, a special master or the Court must first
determine an initial estimate of reasonable fees by multiplying the number of hours reasonably
expended by a reasonable hourly rate. See id. at 1347-48. A reasonable hourly rate is defined as
“‘the prevailing market rate’” in the “‘community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.’” Id. at 1348 (quoting Blum, 465 U.S. at 896 n.
11). And so, after making this initial estimate, the special master or the Court “may then make
an upward or downward departure to the fee award based on other specific findings.” Id. at
1348.

        Notably, the Federal Circuit has also recognized that special masters and the Court may
rely upon prior experience in making reasonable fee determinations, without conducting a line-
by-line analysis of the fee application, and that special masters and the Court are not required to
rely upon the specific objections raised by the Secretary. See Saxton, 3 F.3d at 1521 (holding it
was “within the special master’s discretion to reduce the hours to a number that, in his
experience and judgement, was reasonable for the work done”); Sabella, 86 Fed. Cl. at 211 ; see
also Wasson, 24 Cl. Ct. at 484, 485-86 (holding that, in determining the reasonable number of
hours expended in any given case, special masters may rely on their experience with the Vaccine
Act and its attorneys, without basing their decisions on a line-by-line examination of the fee
application). The Supreme Court has also held that “trial courts need not, and indeed should not,
become green-eyeshade accountants” in determining the reasonable amount of attorneys’ fees.
Fox v. Vice, 563 U.S. 826, 838 131 S. Ct. 2205, 2216 (2011). And so, special masters and judges
of this Court “may take into account their overall sense of a suit, and may use estimates in
calculating and allocating an attorney’s time.” Id.


                                                                                                    16
        In this case, petitioner filed an application for attorneys’ fees and costs requesting an
award of attorneys’ fees and costs in the amount of $162,044.12. See Pet’r Mot. for Att’y Fees at
5. In support of this fee application, petitioner submitted exhibits explaining: (1) the amount of
attorney hours expended; (2) the costs incurred; and (3) the applicable attorney hourly billing
rates. See id. at Ex. 3-5; see also Pet’r Resp. to Resp’t Mot. for Rev. at 7-8.

        In this regard, petitioner’s attorney, Paul S. Dannenberg, represents that he charged a rate
of $250 per hour during the period 2008-2014, and $275 per hour during the period from 2015 to
the present. See Pet’r Mot. for Att’y Fees at 1. Petitioner has submitted an affidavit from his
attorney to support the requested hourly rates. See id. at Ex. 1-2. Petitioner has also submitted
affidavits from other attorneys who practice law in the same jurisdiction that state that these
attorneys have charged between $250 and $325 per hour for similar services. See id. at Ex. 2.

          The Secretary does not object to petitioner’s fee application. See Resp’t Resp. to Pet’r
Fee App. at 2. The Secretary has also stated that he “is satisfied the statutory requirements for an
award of attorneys’ fees and costs are met in this case.” See id.

        The Court has reviewed the billing records and affidavits submitted with petitioner’s fee
application. In the Court’s experience, the requested attorneys’ fees and costs appear to be
reasonable, particularly in light of the length of this multi-year litigation. Given this, the Court
finds no cause to reduce the requested hours or rates.7

        And so, based upon the reasonableness of petitioner’s fee application, the Court concurs
with the decision of the special master to award attorneys’ fees and costs to petitioner in the
amount of $162,044.12.8


7
  A review of the billing records submitted by petitioner indicates that petitioner may not have included
9.3 billable hours in the calculation of the attorneys’ fees requested. Because “[t]he essential goal in
shifting fees (to either party) is to do rough justice, not to achieve auditing perfection,” the Court will not
alter the amount of the attorneys’ fees requested by petitioner. Fox v. Vice, 563 U.S.826, 838, 131 S. Ct.
2205, 2216 (2011).
8
  The Court has carefully considered whether to remand this matter to the special master to determine the
reasonableness of petitioner’s fee application as the Secretary requests, rather than to reach its own legal
conclusions regarding the reasonableness of petitioner’s fee application. In this case, the Secretary’s
request that the Court decide a narrow issue of law regarding the interpretation of Section 15 of the
Vaccine Act and the underlying factual issues regarding petitioner’s fee application are both well-
developed and not in dispute. See generally Resp’t Mot. for Rev.; Pet’r Resp. to Resp’t Mot. for Rev. As
the Court observed in the July 27, 2017, Memorandum Opinion and Order, the special master denied
                                                                                                             17
V.      CONCLUSION
        In sum, the record evidence in this matter shows that the Secretary has not waived the
argument that the special master abused his discretion by failing to make a determination
regarding the reasonableness of petitioner’s application for attorneys’ fees and costs, before
awarding such fees and costs in this matter. The evidentiary record also shows that the special
master abused his discretion by awarding attorneys’ fees and costs to petitioner without making a
determination about the reasonableness of these fees and costs. Nonetheless, the record evidence
also shows that special master’s error was harmless, because petitioner has put forward sufficient
evidence to demonstrate that the amount of attorneys’ fees and costs awarded by the special
master is reasonable.

        And so, for the foregoing reasons, the Court:

        1.      GRANTS-IN-PART and DENIES-IN-PART the Secretary’s motion for review
of the special master’s December 13, 2017, Decision and SUSTAINS the decision of the special
master to grant in full petitioner’s application for attorneys’ fees and costs; and

        2.      Awards a total of $162,044.12, representing a reimbursement of attorneys’ fees
and other costs available under 42 U.S.C. § 300aa-15(e), to petitioner and petitioner’s counsel,
Paul S. Dannenberg.

        The Clerk is directed to enter judgment accordingly.

        Each party to bear its own costs.

        Some of the information contained in this Memorandum Opinion and Order may be
considered privileged, confidential, or sensitive personally-identifiable information that should
be protected from disclosure. And so, this Memorandum Opinion and Order shall be FILED
UNDER SEAL. The parties shall review the Memorandum Opinion and Order to determine
whether, in their view, any information should be redacted prior to publication. The parties shall
also FILE, by July 6, 2018, a joint status report identifying the information, if any, that they



petitioner’s claim in 2014 and the resolution of this litigation has been long delayed. Spahn, 133 Fed Cl.
at 606-07. Given this, the Court will spare the parties further litigation by making its own finding
regarding the reasonableness of petitioner’s fee application. See Davis v. Sec’y of HHS, 105 Fed. Cl. 627,
637 (2012); see also RCFC 1.


                                                                                                       18
contend should be redacted, together with an explanation of the basis for each proposed
redaction.

       IT IS SO ORDERED.



                                                 s/Lydia Kay Griggsby
                                                 LYDIA KAY GRIGGSBY
                                                 Judge




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