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

* * * * * * * * * * * * * * * * * * * * **
M.D., a minor,                           *
by his mother and next friend,           *           No. 10-611V
ROSEMARY DILASCIO,                       *           Special Master Christian J. Moran
                                         *
                    Petitioner,          *
                                         *           Filed: January 4, 2018
v.                                       *           Reissued: February 28, 2018
                                         *
SECRETARY OF HEALTH                      *           Attorneys’ fees and costs; waiver
AND HUMAN SERVICES,                      *
                                         *
                    Respondent.          *
* * * * * * * * * * * * * * * * * * * * **

Corey B. Kaye, Kaye & Lenchner, Mineola, NY, for petitioner;
Glenn A. MacLeod, United States Dep’t of Justice, Washington, DC, for
respondent.

                      UNPUBLISHED DECISION AWARDING
                        ATTORNEYS’ FEES AND COSTS1

       After her petition was dismissed from the Vaccine Program, Rosemary
Dilascio filed a motion for attorneys’ fees and costs. Ms. Dilascio is awarded the
full amount of her request, $96,299.77.

                                         *      *       *

      Ms. Dilascio alleged that various vaccinations caused M.D. to suffer an
encephalopathy and a subsequent seizure disorder. Ms. Dilascio eventually
decided to not proceed to a scheduled entitlement hearing and ultimately submitted

       1
         After this decision was issued on January 4, 2018, Ms. Dilascio moved to redact the
decision. The motion was granted in so far as it sought to replace her son’s name with initials.
The decision is now being made available to the public pursuant to the E-Government Act, 44
U.S.C. § 3501 note (2012).
her case for consideration based on the record on April 20, 2017. Her petition was
then dismissed for insufficient proof. Decision, issued Apr. 26, 2017, 2017 WL
3600575. With the merits of Ms. Dilascio’s case resolved, the parties addressed
attorneys’ fees and costs.

       Ms. Dilascio filed an attorneys’ fees and costs petition on November 21,
2017, requesting $57,750.00 in fees and $38,549.77 in costs. Ms. Dilascio did not
incur any costs personally. Gen. Order No. 9 Statement, filed Jan. 3, 2018.
      The Secretary filed a response representing that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.”
Resp’t’s Resp., filed Dec. 11, 2017, at 2. The Secretary did not raise any specific
objections and recommended that the Special Master “exercise his discretion”
when determining a reasonable award. Id. at 3.

       This matter is now ripe for adjudication.
                                        *       *       *
      Because Ms. Dilascio did not receive compensation, she must establish that
the “petition was brought in good faith and there was a reasonable basis for the
claim” before she can receive an award of reasonable attorneys’ fees and costs. 42
U.S.C. § 300aa–15(e)(1). As noted above, the Secretary believes that the statutory
requirements for an award of attorneys’ fees and costs (by implication, good faith
and reasonable basis) have been met.
       Because good faith has not been challenged nor does any evidence exist to
question it, the undersigned finds that the petition was filed in good faith. The
undersigned finds that the medical records and the expert report submitted by Ms.
Dilascio are sufficient to support a finding of reasonable basis. Accordingly, due
to the findings of good faith and reasonable basis, Ms. Dilascio is eligible for an
award of attorneys’ fees and costs.

      Pursuant to the rationale established in Swintosky, the undersigned finds that
the Secretary has waived any objections to the amount of fees requested. No. 12-
403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6, 2017).2 Absent any


       2
         In Swintosky, the Secretary submitted a joint notice of decision not to seek review and
did not challenge the undersigned’s finding of waiver.

                                                    2
objections, Ms. Dilascio’s request for attorneys’ fees and costs is GRANTED IN
FULL:

       A lump sum of $96,299.77 in the form of a check made payable to
       petitioner and petitioner’s attorney, Corey B. Kaye.
       This amount represents reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). 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.3


               IT IS SO ORDERED.
                                                            s/Christian J. Moran
                                                            Christian J. Moran
                                                            Special Master




       3
          Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint
filing of notice renouncing the right to seek review.

                                                    3
