In the United States Court of Federal Claims

No.04-1170V
Fi|ed: November 22, 2013
Not to be Published

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DANNY L. MlTCHELL and PAULA
MlLLER, as Parents and Natural
Guardians of ANDREW N. l\/llTCHELL,
a minor,

Petitioner, Autism; Attorneys’ Fees and Costs
v.

SECRETARY OF HEALTH
AND HUl\/|AN SERV|CES,

Respondent.

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DEC|S|ON AWARD|NG ATTORNEYS’ FE§S AND COSTS1

On October 5, 2011, petitioner’s former counsel filed a motion for interim
attorneys’ fees and costs in this case.z Respondent opposed the motion, arguing that
fees and costs should not be awarded in untimely filed cases. Because this issue 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.
Thus, a ruling on the motion for attorneys’ fees and costs was deferred.

1 Because this unpublished decision contains a reasoned explanation for the action in this
case, l intend to post this decision on the United States Court of Federa| Claims' website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). in accordance with Vaccine Ru|e
18(b), a party has 14 days to identify and move to delete medical or other information, that
satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. lf, upon review,
l agree that the identified material fits within the requirements of that provision, l will delete such
material from public access.

2 Counsel also filed a motions withdraw as counsel of record on September 8, 2011, October 5,
2011, and October 25, 2011. Counsel’s request to withdraw was granted on February 8, 2012
and petitioner proceeded as a pro se petitioner. The case was dismissed for failure to
prosecute on April 1, 2013. The fees and costs requested are now final attorney’s fees and
costs.

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 irfgood faith and with a réa§anablé basis. Réspohdérit”will withdraw heir 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." 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 former 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.

Petitioner seeks attorneys’ fees and costs in the amount of $5,744.25. in lieu of
filing a Vaccine General Order #9 statement, petitioner’s former counsel represents that
he will reimburse petitioners any costs that petitioner personally incurred that are
compensable under § 15 (e)(1).

Pursuant to §15(e), l hereby award a lump sum of $5,744.255 to be paid in
the form of a check payable jointly to the petitioner and petitioner’s former
counse|, A|an M. Pickert. The check shall be sent to petitioner’s former counsel
at counsel’s address: Brown, Terre||, et a|., 233 East Bay Street, 8"‘ F|oor,
Jacksonville, FL 32202.

The Clerk of the court shall send a copy of this decision to petitioner at her
address of record and to petitioner’s former counsel at the above address.

3 The Supreme Court held that a "petition found to be untimely may qualify for an award of

attorney's fees if it is filed in good faith and there is a reasonable basis for its claim." Sebe/ius v.

C/0er, 133 S.Ct. 1886, 1896-97 (2013).

4 The first caveat is that respondent will continue to object in any case where the filed medical
records show that there was a diagnosis outside the statute of limitations. The second caveat
applies to those cases, in which the claim lacked a reasonable basis for reasons unrelated to
timely filing. For example, if the minor vaccinee received only a hepatitis B vaccine at birth and
no additional vaccines were administered, respondent may continue to object because the
period between vaccination and onset of symptoms at 15 months of age is unreasonable.

5 This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, "advanced costs" as well as fees for
legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or
collecting fees (including costs) that would be in addition to the amount awarded herein. See
generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir.1991).

