    In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                         No. 15-1128V
                                   Filed: November 10, 2016

*************************
KATHLEEN HEYER,                         *               UNPUBLISHED
                                        *
                                        *               Special Master Hamilton-Fieldman
                     Petitioner,        *
                                        *
v.                                      *               Pro Se Costs; Reasonable Basis.
                                        *
SECRETARY OF HEALTH                     *
AND HUMAN SERVICES,                     *
                                        *
                     Respondent.        *
*************************
Kathleen Heyer, pro se.
Glenn A. MacLeod, United States Department of Justice, Washington, DC, for Respondent.

                                            DECISION1

         On October 6, 2015, Kathleen Heyer (“Petitioner”) petitioned pro se for compensation
under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012).
Petitioner alleged that the administration of an influenza (“flu”) vaccine on October 8, 2012
caused her to suffer ongoing diffuse inflammation. Petition at Preamble, filed Oct. 6, 2016. An
initial status conference was held on December 1, 2015 in which Petitioner was ordered to file
medical records in support of her claim by February 2, 2016. See Order, ECF No. 7, filed Dec.
4, 2015. However, through informal communication on December 14, 2015, Petitioner notified


1
 Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this ruling on the website of the United States Court of Federal
Claims, in accordance with the purposes espoused in the E-Government Act of 2002. See 44
U.S.C. § 3501 (2012). Each party has 14 days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in
substance and is privileged or confidential; or (2) that includes medical files or similar files, the
disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule
18(b).
the court that she wished withdraw her claim. A status conference was held on January 13, 2016
to discuss Petitioner’s request and options for exiting the Program. See Order, ECF No. 9, filed
Jan. 15, 2016.

        On February 1, 2016, Petitioner filed a pro forma motion for a decision dismissing her
petition, stating “[a]n investigation of the facts and science supporting [her] case has
demonstrated to petitioner that [she] will be unable to prove that [she] is entitled to compensation
in the Vaccine Program.” Motion at ¶ 1, filed Feb. 1, 2016. A decision dismissing this case for
insufficient proof was issued on February 4, 2016.

        Thereafter, Petitioner filed a motion for reimbursement of the filing fee and mailing costs
in the amount of $484.13. Respondent filed a response in opposition to Petitioner’s motion on
August 1, 2016. Respondent argued that “in the absence of any evidence supporting the claim
for which the petition was brought, the special master has no basis from which to determine that
the instant claim had a reasonable basis and was filed in good faith,” pursuant to 42 U.S.C. '
300aa-15(e)(1). Response to Motion at 1, filed Aug. 1, 2016. Respondent averred that she had
no opposition to the amount claimed, rather the issue was “purely a legal one” of “whether the
law empowers the court to pay this request as reasonable as it may be.” Id. at 3. According to
Respondent, as the reasonable basis standard is met by submitting evidence, and Petitioner did
not submit any evidence in this case, “there is simply no foundation for respondent, or the court,
to sensibly conclude that a reasonable basis existed for the claim for which the petition was
brought.” Id. at 5.

        A status conference was held on September 7, 2016 to discuss this issue. During the
status conference, Petitioner stated that she had medical records indicating she was advised by
her doctor to no longer receive flu vaccines because she experienced an adverse reaction to the
flu vaccination at issue in this case. Petitioner was ordered to file these medical records to
support the reasonable basis requirement for an award of litigation costs. See Order, ECF No.
17, filed Sept. 8, 2016.

        On September 15, 2016, Petitioner filed a supplemental motion for reimbursement of
costs in the amount of $484.13, along with two records from The Gosh Center for Oncology and
Hematology, filed as exhibit one. Respondent did not file a response to Petitioner’s
supplemental motion.

        This case is now ripe for a decision on Petitioner’s motion for reimbursement of costs.

   I.      Discussion

        Section 15(e) of the Vaccine Act provides that reasonable attorneys’ fees and other costs
shall be awarded as part of compensation to a successful petitioner. However, on a petition that is
unsuccessful on entitlement, reasonable attorneys’ fees and costs may be awarded “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).

         Congress vested the special master with discretion in awarding attorneys’ fees and costs
to unsuccessful claimants and “plainly contemplat[ed] that not all petitioners would recover fees
and costs.” Chuisano v. United States, 116 Fed. Cl. 276, 286 (2014). At the same time, the
special master’s discretion is tempered by the remedial nature of the Vaccine Act. See Cloer v.
Sec’y of HHS, 675 F.3d 1358, 1362 (Fed. Cir. 2012) (declaring on the question of whether
Petitioner was eligible to receive an award of attorneys’ fees and costs that “[r]emedial
legislation like the Vaccine Act should be construed in a manner that effectuates its underlying
spirit and purpose”).

        With regard to the good faith requirement, the Court of Federal Claims has observed that
petitioners “are entitled to a presumption of good faith.” Grice v. Sec’y of HHS, 36 Fed. Cl. 114,
121 (1996). As to the existence of a reasonable basis for filing the claim, the Vaccine Act
“grants to the special master maximum discretion in applying the standard.” Silva v. Sec’y of
HHS, 108 Fed. Cl. 401, 402 (2012). “Reasonable basis is an objective standard determined by
the totality of the circumstances,” and “is something less than the preponderant evidence
ultimately required to prevail on one’s vaccine-injury claim.” Chuisano, 116 Fed. Cl. at 286-87.

        Here, the undersigned finds no bad faith on the part of Petitioner to rebut the presumption
of good faith. The undersigned also finds there was a reasonable basis to bring this claim, based
on the records petitioner provided to support her request for reimbursement of costs. Petitioner’s
exhibit one is comprised of signed and dated prescriptions from Dr. Chirantan Ghosh. The
oldest record states: “recommend not to receive flu vaccine,” and is dated July 24, 2013—nine
months after the alleged administration of the vaccine at issue. Petitioner’s Exhibit 1, ECF No.
18. The second record from Dr. Ghosh states: “Please do not administer influenza vaccine due to
prior reaction to vaccine that patient is currently still being treated for.” Id. This record was
made on September 24, 2015, twelve days before the petition was filed in this case. Both of
these records indicate that a medical provider recognized that the Petitioner suffered an adverse
event related to a flu vaccination, and that Petitioner was advised to no longer receive flu
vaccines. While these records are certainly not sufficient to preponderantly establish entitlement
to compensation from the Program, when considering “something less than” that standard and
the de minimis amount in question, these records do establish that Petitioner had a reasonable
basis to bring a claim.

        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e), the undersigned finds that
Petitioner’s request for costs is reasonable. Accordingly, Petitioner is hereby awarded the
amount of $484.13, in the form of a check made payable to Petitioner, Kathleen Heyer. In
the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court
shall enter judgment in accordance herewith.2

       IT IS SO ORDERED.


                                             /s/ Lisa D. Hamilton-Fieldman
                                             Lisa D. Hamilton-Fieldman
                                             Special Master




2
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to
seek review. Vaccine Rule 11(a).
