         In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                               No. 08-756V
                                        Filed: September 26, 2014
                                          (Not to be Published)1


*************************
                                   *
CHRISTAL SCOTT,                    *
parent of T.F., a minor,           *
                                   *
                       Petitioner, *                                     Decision on Interim
                                   *                                     Attorneys’ Fees and Costs
                v.                 *
                                   *
SECRETARY OF HEALTH                *
AND HUMAN SERVICES                 *
                                   *
                       Respondent. *
                                   *
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           DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS

HASTINGS, Special Master.

       In this case under the National Vaccine Injury Compensation Program (hereinafter “the
Program”)2, Petitioner seeks, pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1), an award for
attorneys’ fees and other costs incurred in attempting to obtain Program compensation in this
case. After careful consideration, I have determined to grant the request, for the reasons set forth
below.

1
  Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this
decision on the United States Court of Federal 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)). As
provided by Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information
furnished by that party (1) that is trade secret or commercial or financial information and is privileged or
confidential, or (2) that are medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, “the entire” decision will be available to the
public. Id.
2
 The applicable statutory provisions defining the Program are found at 42 U.S.C. §300aa-10 et seq. (2006).
Hereinafter, for ease of citation, all “§” references will be to 42 U.S.C. (2006).

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                                                 I
                               PROCEDURAL BACKGROUND
        The Petitioner, Christal Scott, filed this petition on October 23, 2008, alleging that her
son, T.F., was injured by several vaccinations. (Petition at 1.) Petitioner, at the time, appeared
pro se, and no medical records accompanied the filing. The case was originally assigned to Chief
Special Master Golkiewicz, and on December 2, 2008, in accordance with Special Master
Golkiewicz’ Order dated November 4, 2008, Petitioner filed the necessary medical records.
(Order, ECF No. 5.)
        On July 15, 2011, Petitioner’s current counsel, Richard Gage, entered his appearance in
the case (Motion, ECF No. 13). On September 19, 2011, the case was reassigned to my docket.
(Order, ECF No. 19.) On July 9, 2012, Petitioner filed affidavits and a request for a fact hearing.
(ECF No. 27.) The fact hearing was held in Dallas, Texas, on December 11, 2012, and eleven
fact witnesses testified. After the hearing, Petitioner was directed to file a complete (and in some
instances reorganized) set of medical records. On October 21, 2013, Petitioner filed a statement
of completion of the medical record. (ECF No. 66.)
        Petitioner filed a request for Interim Attorneys’ Fees and Costs on November 14, 2013,
representing expenses incurred by Petitioner through that date. (ECF No. 67.) Respondent filed
Objections to Petitioner’s application on December 2, 2013. (ECF No. 68.) On June 5, 2014, I
filed a Decision granting Petitioner an award of interim attorneys’ fees and costs, totaling
$38,880.63. (ECF No. 77.)
       On July 11, 2014, Petitioner filed a second request for Interim Attorneys’ Fees and Costs,
amounting to $2,505.80, to compensate for legal expenses incurred after November 14, 2013.
(ECF No. 83.) On July 18, 2014, Petitioner’s counsel filed a Motion to Withdraw as Attorney.
(ECF No. 84.) Respondent filed “Objections” (“Resp. Objections”) to Petitioner’s second
request on July 21, 2014. (ECF No. 86.)


                                                 II
       LEGAL STANDARD FOR AWARDING ATTORNEYS’ FEES AND COSTS
A. General standards for awarding fees and costs
        Special masters have the authority to award “reasonable” attorneys’ fees and litigation
costs in Vaccine Act cases. § 300aa-15(e)(1). This is true even when a petitioner is unsuccessful
on the merits of the case, if the petition was filed in good faith and with a reasonable basis. Id.
“The determination of the amount of reasonable attorneys’ fees is within the special master’s
discretion.” Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993); see also Shaw v. HHS, 609 F.3d
1372, 1377 (Fed. Cir. 2010).
        Further, as to all aspects of a claim for attorneys’ fees and costs, the burden is on the
petitioner to demonstrate that the attorneys’ fees claimed are “reasonable.” Sabella v. HHS, 86
Fed. Cl. 201, 215 (2009); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Rupert v. HHS, 52


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Fed. Cl. 684, 686 (2002); Wilcox v. HHS, No. 90-991V, 1997 WL 101572, at *4 (Fed. Cl. Spec.
Mstr. Feb. 14, 1997). The petitioner’s burden of proof to demonstrate “reasonableness” applies
equally to costs as well as attorneys’ fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff’d, 33
F.3d 1375 (Fed. Cir. 1994).

B. Interim fees and costs
        Interim attorneys’ fees and costs are explicitly authorized by the binding precedent of the
United States Court of Appeals for the Federal Circuit. Avera v. HHS, 515 F.3d 1343, 1352 (Fed.
Cir. 2008); Shaw v. HHS, 609 F.3d 1372, 1374 (Fed. Cir. 2010) (“the Vaccine Act permits [an]
award of interim fees and costs”); Cloer v. HHS, 675 F.3d 1358, 1361-62 (Fed. Cir. 2012)
(“Congress made clear that denying interim attorneys’ fees under the Vaccine Act is contrary to
an underlying purpose of the Vaccine Act.”); see also Vaccine Rule 13(b) (mentioning “interim
fees”).


                                                      III
                                    RESPONDENT’S ARGUMENTS
       Respondent requests a denial of Petitioner’s second request for interim fees and costs,
because payment of such an award is “not appropriate at this juncture in the case.” (Resp.
Objections, p. 1.) Rather, Respondent argues that adjudication of attorneys’ fees and costs
should occur only “at the conclusion of the case.” (Id., p. 3.)
        The factors that are relevant to a determination of whether to award interim fees,
according to Respondent, are set forth in Avera v. HHS, 515 F.3d 1343 (Fed. Cir. 2008). Those
factors include whether the case involved protracted proceedings, whether there were expensive
experts retained, and whether Petitioner had suffered undue hardship. (Resp. Objections, p. 2.)
In citing to Avera, Respondent contends that this fees application should be denied because
Petitioner has not demonstrated that she would suffer undue hardship as a result. (Id., pp. 3-4.)
        Respondent does not object to the specific amounts that Petitioner has requested for fees
and costs, (id., p. 4 n.2), nor does Respondent wish to argue that this petition was filed in bad
faith or that it lacks a reasonable basis (id., p. 3 n.1).


                                                      IV
                                               DISCUSSION
        On July 18, 2014, Petitioner’s counsel filed a Motion to Withdraw as Attorney. (ECF No.
84.) That Motion stated that Petitioner, “Christal Scott, has instructed the undersigned [Richard
Gage] to withdraw as her counsel in this matter. Petitioner is presently seeking counsel to
represent her in this case.” (Id.) Thus, it is clear that Petitioner intends to proceed with this case
without counsel, until new counsel has been retained. While seeking new counsel, Petitioner
will also be expected to seek and retain a medical expert to present her theory of causation.


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        The general argument that Respondent advances here -- that adjudication of attorneys’
fees and costs should only occur at the conclusion of a case -- has been made many times
previously, and rejected. In one such ruling, the court cited twenty cases in which special
masters had granted interim fees when judgment concerning the merits had not yet been entered.
See, e.g., Bear v. HHS, No. 11-362V, 2013 WL 691963, at *3 (Fed. Cl. Spec. Mstr. Feb. 4,
2013)(finding the fact that counsel is withdrawing from representation does not in itself justify
an interim award, but is a persuasive factor to be considered in the analysis); Crutchfield v. HHS,
2011 WL 3806351, at *4-5 (Fed. Cl. Spec. Mstr. Aug. 4, 2011)(finding that an award of interim
fees was appropriate when further proceedings would be protracted.)
        Respondent cites Avera, 515 F.3d at 1352, and McKellar v. HHS, 101 Fed. Cl. 297, 300
(2011), apparently arguing therefrom that only several specific factors are relevant to a
determination of when an interim fee award might be appropriate. (Resp. Objections, p. 2.) In
McKellar, the court stated: “we view Avera to mean that some special showing is necessary to
warrant interim fees, including but not limited to the delineated factors of protracted
proceedings, costly experts, or undue hardship.” McKellar, 101 Fed. Cl. at 301. Further, the
court held that “the mere fact that an attorney plans to withdraw is not necessarily a hardship that
triggers an award of interim attorneys’ fees and costs.” (Id. at 302.) Petitioner’s request for
interim fees was denied in McKellar because there was no showing of special circumstances.
        The facts and procedural history of this case do not make for an apt comparison with
McKellar. Petitioner’s counsel in this case is not simply “planning” to withdraw, as in
McKellar. Rather, counsel has been instructed to withdraw, by Petitioner. If respondent’s legal
interpretation is applied in this case, counsel would not be compensated at this time, but at some
future date when the case concludes, and Petitioner would have the added burden of filing a
request to compensate the attorney she has effectively discharged. Further, it is likely that
ongoing proceedings in this case will be protracted, since it has been pending for almost six
years at this time, Petitioner has already filed a substantial amount of evidence, and she
continues to seek a probative expert opinion. See, e.g., Woods v. HHS, 105 Fed. Cl. 148, 154
(Fed. Cl. 2012)(affirming the special master’s award of interim fees and suggesting that when
counsel withdraws, and it is unknowable how long case resolution might take, an interim award
may be appropriate); Lumsden v. HHS, No. 97-588V, 2012 WL 1450520, at *4-6 (Fed.Cl.Spec.
Mstr. Mar. 28, 2012)(awarding interim fees over respondent’s objection when proceedings had
been protracted and petitioner’s attorney was withdrawing from the case); Edmonds v. HHS, No.
04-87V, 2012 WL 1229149, at *13 (Fed. Cl. Spec. Mstr. Mar. 22, 2012)(awarding interim fees
over respondent’s objections when petitioner’s counsel was about to withdraw.) I find that the
overall circumstances of this case fit within the very broad guidelines suggested in the Avera
opinion concerning when an interim award is appropriate.
        The request for interim attorneys’ fees and costs is hereby granted. Petitioners are
awarded reasonable interim attorneys’ fees and costs pursuant to §§ 15(b) and (e)(1), as I find
that the petition was brought in good faith and upon a reasonable basis, and the amount requested
is reasonable and appropriate. Accordingly, I hereby award the following attorneys’ fees and
costs pursuant to 42 U.S.C. § 300aa-15(b) and (e)(1):
       •       a lump sum of $2,505.80, in the form of a check payable jointly to Petitioner
               and Petitioners’ counsel, Richard Gage, on account of services performed
               by counsel’s law firm.
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                                                V
                                        CONCLUSION
       For the foregoing reasons, I award Petitioner $2,505.80 in attorney’s fees and costs. The
award shall be made in the form of a check payable jointly to Petitioner and Petitioner’s counsel.

IT IS SO ORDERED.


                                                          /s/ George L. Hastings, Jr.
                                                           George L. Hastings, Jr.
                                                           Special Master




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