                            In the United States Court of Federal Claims
                                                          OFFICE OF SPECIAL MASTERS
                                                                  No. 15-804V

*************************
                           *
JEFF CURRAN,               *                                                 Special Master Corcoran
                           *
               Petitioner, *                                                 Filed: March 24, 2017
                           *
          v.               *                                                 Decision on Remand; Attorney’s
                           *                                                 Fees and Costs; Reasonable Basis;
SECRETARY OF HEALTH        *                                                 Wind-down Costs.
AND HUMAN SERVICES,        *
                           *
               Respondent. *
                           *
*************************

Andrew D. Downing, Van Cott & Talamante PLLC, Phoenix, AZ, for Petitioner.

Debra A. Filteau Begley, U.S. Dep’t of Justice, Washington, DC, for Respondent.

    AMENDED DECISION ON REMAND GRANTING IN PART (A) WIND-DOWN FEES,
                 AND (B) FEES ASSOCIATED WITH APPEAL1

        On July 29, 2015, Jeff Curran filed a petition seeking compensation under the National
Vaccine Injury Compensation Program (the “Vaccine Program”).2 The Petition alleged that Mr.
Curran had experienced an adverse reaction after receiving the HPV vaccine in August 2012. See
Pet. at 1 (ECF No. 1). Petitioner’s counsel, Mr. Andrew Downing, Esq., had only received the
matter a month before it was filed, and therefore was under pressure from a looming statute of
limitations cut-off deadline to file the case, before he had the opportunity to evaluate the claim’s
objective basis.

                                                            
1
  This decision will be posted on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C § 300aa-12(d)(4)(B), however, the parties
may object to the decision’s inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) permits
each party fourteen (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).
Otherwise, the decision in its present form will be available to the public. Id.
2
   The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
 
       A little more than six months later, however, Petitioner concluded (based upon records that
came into counsel’s possession shortly after filing) that he could not prove his case, and therefore
requested its dismissal, which I effected on February 10, 2016 (ECF No. 14).

        Petitioner then requested an award of attorney’s fees and costs in the combined amount of
$9,656.09. Application for Attorney’s Fees and Costs, dated Apr. 29, 2016 (ECF No. 18); see also
Supplement to Fees App., dated June 8, 2016 (ECF No. 23). Respondent opposed the request,
arguing that the claim lacked reasonable basis in its entirety. I agreed in part, finding that in filing
the action on the eve of the limitations cut-off, Petitioner and his counsel had acted reasonably in
relying on Petitioner’s own allegations. By August 2015, however – the month after filing –
counsel had come into possession of objective record information that clearly cast doubt on the
basis for the claim, at which time the claim officially could be said to lack sufficient reasonable
basis upon which to proceed. I therefore agreed to award only $3,285.31 in attorney’s fees and
costs, reflecting work performed before the case lost reasonable basis. Fees Decision, dated June
22, 2016 (ECF No. 24).

        Petitioner sought review of my decision, challenging my determination as to reasonable
basis, but also arguing that his counsel should receive “wind-down” costs associated with the
case’s termination. The matter was assigned to Judge Firestone, who subsequently issued an
opinion affirming my determination as to reasonable basis – but remanding to me resolution of
whether wind-down costs should be recovered under the circumstances, reasoning that the question
had not been addressed in my original fees decision. See Curran v. Sec’y of Health & Human
Servs., No. 15-804V, 2016 WL 4272069 (Fed. Cl. Spec. Mstr. June 22, 2016), aff’d in part and
remanded, 130 Fed. Cl. 1 (Jan. 3, 2017). I therefore invited the parties to brief the matter, which
they have now done. Petitioner has also separately requested an award of fees spent litigating the
motion for review. See Supplemental Application for Appeal-Related Attorney’s Fees and Costs,
dated January 12, 2017 (ECF No. 35).

       For the reasons stated below, I grant in part both aspects of Petitioner’s additional fees
requests.

                                      Arguments on Remand

        Mr. Curran filed a memorandum of law on the recoverability of wind-down fees and costs
on January 18, 2017. ECF No. 36 (“Wind-down Mot.”). In it, he points out that any claim found
to lack, or have lost, reasonable basis would still require preparation of certain documents and
pleadings to terminate the matter (such as a Notice of Election to File a Civil Action or a Motion
to Dismiss), and that counsel is in fact bound by ethical obligations to prepare those materials.
Wind-down Mot. at 2. In support of his contentions, he also references a case in which former
Chief Special Master Vowell held (after finding that reasonable basis had ceased while a case was
pending) that fees and costs associated with “actions reasonably necessary to conclude the
                                                2 
 
litigation” were nevertheless recoverable, even if incurred after reasonable basis ceases to exist for
the claim itself. Id. at 2-3, citing Heath v. Sec’y of Health & Human Servs., No. 08-86V, 2011 WL
433646, at *12 (Fed. Cl. Spec. Mstr. Aug. 25, 2011).

        Based on these arguments, Petitioner now requests a total of $4,938.69 in wind-down fees
and costs – exceeding by approximately $1,700.00 what I previously awarded him for the period
of time in which the case’s reasonable basis existed. The Exhibit A appended to the motion reveals
the basis for this figure. Petitioner’s counsel has highlighted those portions of the billing record
that constitute purported wind-down activity. This includes (a) 9.8 hours of Mr. Downing’s time
incurred between December 2015 and June 2016, calculated at a rate of $350 per hour; (b) 6.5
hours of associate Courtney Van Cott’s time for the same period, billed at $195 per hour; and (c)
2.2 hours of paralegal time, billed at $100 per hour. See generally Exhibit A to Wind-down Mot.
Petitioner also requests costs of $21.19 for electronic legal research and photocopies. Id. at 13.
These sums are derived from the same attorney invoices that formed the basis of Petitioner’s 2016
fees request, and thus reflect amounts previously denied. They also go beyond the costs directly
associated with termination of the case, since they include the costs of preparing the initial fees
request.

       Respondent opposed Petitioner’s request on February 21, 2017. ECF No. 37 (“Opp.”). He
maintains that under controlling Federal Circuit precedent, no fees at all can be obtained after
reasonable basis ceases in a matter. Opp. at 2-3, citing Perreira v. Sec’y of Health & Human Servs.,
33 F.3d 1375, 1376 (Fed. Cir. 1994). Respondent also argues that Heath does not bind my
determination herein.

        On February 28, 2017, Petitioner filed a reply to Respondent’s opposition. ECF No. 38
(“Reply”). This reply mostly repeats Petitioner’s prior arguments in support of his request for
wind-down and appeal-related fees and costs. Petitioner also contends that the reason the request
is so high is in part due to Respondent’s refusal to negotiate on the issue of a proper attorney’s fees
and costs award. Reply at 2.

        In addition to requesting wind-down fees and costs, Petitioner has separately asked for fees
associated with briefing his motion for review. See Supplemental Application for Appeal-Related
Attorney’s Fees and Costs, dated January 12, 2017 (ECF No. 35). Petitioner requests a total of
$7,302.90 in such fees and costs – over twice what he received for the period of time in which the
case possessed reasonable basis. Respondent’s opposition to the wind-down costs issue also
includes a section devoted to this separate category of costs and argues that because Petitioner’s
appeal was unsuccessful, he should not receive any of these appeal-related costs. Opp. at 4-5.
Petitioner’s reply also addresses this argument, and contends that Perriera did not consider the
issue of litigating attorney’s fees on a motion for review and thus should not apply. Reply at 4.



                                                  3 
 
                                                               Analysis

I.            Some Wind-Down Fees and Costs Are Properly Awarded in this Case

        Respondent’s arguments overstate the precedential law governing fees availability in cases
found to lose reasonable basis while pending. Denial of fees after a case loses reasonable basis
certainly is common in Program decisions. See, e.g., Perreira, 33 F.3d at 1375; Hashi v. Sec’y of
Health & Human Servs., No. 08-307V, 2016 WL 5092917, at *3 (Fed. Cl. Spec. Mstr. Aug. 25,
20216); Miller v. Sec’y of Health & Human Servs., No. 13-914V, 2016 WL 2586700, at *6 (Fed.
Cl. Spec. Mstr. Apr. 12, 2016). However, Perreira does not explicitly state that once reasonable
basis is determined to cease, no fees of any kind incurred temporally thereafter can ever be
awarded. Moreover, although Heath involves facts that are distinguishable from this case,3 it
nevertheless is persuasive in suggesting that a determination that a case has lost reasonable basis
while pending should not bar recovery of fees and costs reasonably necessary to its wind-down
and termination. If a case began with reasonable basis, it is fair to permit counsel (who acted
reasonably in bringing the action) an opportunity to close the case out – and receive fees associated
with such actions.

        Of course, the above does not change the fact that special masters are empowered to award
only reasonable fees, and may accordingly cut back fees requests where the work performed was
not reasonable. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 208-09 (2009);
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (1992), aff’d, 33 F.3d 1375 (Fed.
Cir. 1994) (special master has “wide discretion in determining the reasonableness” of attorney’s
fees and costs”).

        Petitioner requests $4,938.69 in total attorney’s fees and costs associated with winding
down the claim. This includes costs incurred after termination associated with his attempt to
recover fees, but before I reached the conclusion (since upheld by the Court of Federal Claims)
that the case’s reasonable basis had ceased almost a year before. Thus, the total hours billed that
Petitioner highlighted as “directly related” to winding down the claim amount to 18.5 hours.
Exhibit A to Wind-down Mot. at 2, 8-9, 12-13.

       But counsel spent only 4.2 hours of this time actually engaging in tasks directly related to
dismissing Petitioner’s claim. See id. at 2, 8-9. Rather, the majority of the time requested for
winding down the case was dedicated to drafting the initial motion for attorney’s fees and
preparing a reply to Respondent’s brief opposing an attorney’s fees and costs award. 14.3 hours
                                                            
3
  In Heath, former Chief Special Master Vowell held a fact hearing to resolve evidentiary conflicts in the claimant’s
case. Heath, 2011 WL 4433646, at *1-2. After issuance of a fact ruling, the petitioner determined that he could not
proceed with the claim – and his willingness to concede the claim’s dismissal was largely attributable to the fact that
the opinion of the expert he had retained earlier in the case was reliant on factual suppositions that had been rejected
in the fact ruling. Id. at *5, *8-10. Heath thus is a case that had progressed far beyond where Mr. Curran’s claim was
at the time it was dismissed. 
                                                                  4 
 
were spent on these tasks, accounting for $4,065.50 of the $4,938.69 requested wind-down fees.
Exhibit A to Wind-down Mot. at 9, 12-13. As a result, Petitioner now asks for fees that exceed by
thirty percent what I permitted Petitioner to recover in the first place.

         Fees-collecting charges are not properly included as wind-down costs – especially when
they dwarf time billed to a matter while it (briefly) possessed reasonable basis. A fees request
“should not result in a second major litigation,” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983),
and I have previously found that it is improper to grant such a high amount of fees and costs for
litigating fees compared to the amount billed to actually litigating the merits of Petitioner’s claim.
See, e.g., Nichols v. Sec’y of Health & Human Servs., No. 14-1103V, 2016 WL 4272356, at *6
(Fed. Cl. Spec. Mstr. June 22, 2016) (“fees for litigating fees disputes should not constitute a third
of the total award requested”).

        Overall, Petitioner’s request is excessive. In a case that has been found to have lost
reasonable basis while pending, due to disclosure of evidence that objectively undercuts its
viability, attorneys should primarily recover costs clearly associated with winding down the
matter. Moreover, those costs should be modest in magnitude. Indeed, an attorney with experience
in the Program (like Mr. Downing) could, by relying on forms from other matters, conceivably
accomplish all that was necessary to end a case in an hour’s time – or less, if competent associates
or paralegal services were used. While a fees dispute may be a proper component of such costs
(especially where Respondent refuses to consider any fees), counsel should take care not to allow
them to grow out of proportion to the costs associated with litigating the case while it had
reasonable basis.

       Given the above, although the wind-down fees requested are based on hourly rates that I
have previously deemed reasonable (see Curran, 2016 WL 4272069, at *4), the total amount of
fees and costs requested are not. I therefore shall (in an effort to achieve “rough justice”) award
only 50 percent of the requested award of wind-down fees and costs as follows:

           (a) Mr. Downing – 9.8 hours billed x .50 = 4.9 hours awarded
                            4.9 hours x $350 per hour = $1,715.00

           (b) Ms. Van Cott – 6.5 hours billed x .50 = 3.25 hours awarded
                             3.25 hours x $195 per hour = $633.75

           (c) Paralegal Work – 2.2 hours billed x .50 = 1.1 hours awarded
                             1.1 hours x $100 per hour = $110.00

           (d) Costs - $21.19 x .50 = $10.60 awarded

               Total: $2,469.35
                                                  5 
 
        My decision herein may well impel Petitioner to seek further review of the matter, only
compounding the fees expended on a case that should never have been brought in the first place.
Nevertheless, it places the risk for prosecuting a claim lacking reasonable basis on the party on
whom that risk should rest: counsel. In any Vaccine Program claim, counsel are expected to
perform some due diligence before filing, which may require an expenditure of time reviewing
materials connected to the claim before it is filed. That time is not reimbursed via the Program, but
is instead properly viewed as borne by the attorney as business cost.

        Fees incurred after a claim has been deemed to lack reasonable should not be treated much
differently. Once reasonable basis is fixed in time, the onus is on counsel to close out the matter
as quickly as possible – and this includes resolving any fees disputes – or risk bearing his own fees
and costs. Here, Mr. Curran’s claim persisted despite the fact that its lack of objective support
could have been discerned by counsel shortly after its filing. Instead (and as discussed in my
original fees decision) little work was performed on the matter thereafter, allowing it to languish
for several months until Respondent’s review of medical records exposed the claim’s deficiencies.
See Status Report, filed on January 7, 2016 (ECF No. 12). Such circumstances do not justify a
wind-down fees award that exceeds the sum awarded for the short period in which the claim had
an objective basis.

II.    Fees and Costs Associated with the Motion for Review

        It is common in the Program for attorneys to receive fees and costs associated with a motion
for review, independent of the success of the motion. See, e.g., Scharfenberger v. Sec’y of Health
& Human Servs., No. 11-221V, 124 Fed. Cl. 225 (Dec. 4, 2015) (awarding fees and costs related
to a motion for review, even though the Court upheld the special master’s decision); Caves v. Sec’y
of Health & Human Servs., No. 07-443V, 2014 WL 407036 (Fed. Cl. Spec. Mstr. Jan. 13, 2014);
Brown v. Sec’y of Health & Human Servs., No. 09-426V, 2013 WL 2350541, at *2 (Fed. Cl. Spec.
Mstr. May 6, 2013). Respondent has opposed the request for this category of fees on the basis of
the reflexive reasoning that because the motion for review was unsuccessful on the issue of
reasonable basis, the fees associated with litigating that question are not recoverable (Opp. at 4-5).

       I do not find such arguments compelling. Indeed, I have previously awarded fees and costs
connected to a motion for review regardless of the petitioner’s success. See R.V. v. Sec’y of Health
& Human Servs., No. 08-504V, 2016 WL 7575568, at *3 (Fed. Cl. Spec. Mstr. Nov. 28, 2016).
And the fact that a case is determined to lack reasonable basis does not mean that a petitioner
cannot appeal that determination.

        I will therefore award some amounts of this category of fees and costs. But (consistent with
my discretion to award what are “reasonable” fees and costs in any case) I will not award the
entirety of Petitioner’s request. Having reviewed the submitted invoices, I find there were several
                                                  6 
 
instances of duplication of effort between Mr. Downing and Ms. Van Cott. See Exhibit A to
Supplemental Application for Appeal-Related Attorney’s Fees and Costs (ECF No. 35-1) at 1-3
(showing duplicative work on Petitioner’s motion for review and reply to Respondent’s
opposition). More significantly, the total amount of attorney time collectively devoted to the appeal
– 27.1 hours – not only exceeds what was required to address the issue presented, but also is
excessive in light of the sum awarded for attorney work while the case possessed reasonable basis.
Extraneous fees should not grossly dwarf those that were properly incurred in representing a
claimant. Therefore, I find an overall reduction to this amount of 20 percent to be warranted, and
will reduce the requested $7,302.90 accordingly.

III.          Fees Awarded in Original Decision

        In addition, I will include in this decision the fees that I originally awarded in my decision
on Petitioner’s first fee application of $3,285.31. Due to Petitioner’s motion for review, judgment
did not enter on that specific amount. My decision to award this sum was affirmed on appeal by
Judge Firestone, and will therefore be added to the total amount awarded to Petitioner for
attorney’s fees and costs.

                                                               CONCLUSION

              Based on the above, I award the following costs:

                       CONTESTED SUM                              AMOUNT        REDUCTION              AMOUNT
                                                                REQUESTED                             AWARDED
         Wind-down Fees and Costs                                  $4,938.69        $2,469.34           $2,469.35
      Fees and Costs Related to the                                $7,302.90        $1,460.58           $5,842.32
                Motion for Review
     First Award of Attorney’s Fees                                 $9,266.09       $5,980.78             $3,285.31
                          and Costs
    TOTAL:                                                                                              $11,596.98

         Accordingly, in the exercise of the discretion afforded to me in determining the propriety
of attorney’s fees and costs awards, and based on the foregoing, I GRANT IN PART Petitioner’s
application, awarding a total of $11,596.98 as a lump sum in the form of a check jointly payable
to Petitioner and Petitioner’s counsel, Andrew Downing, Esq. In the absence of a motion for review
filed pursuant to RCFC Appendix B, the clerk of the Court is directed to enter judgment
accordingly.4

                                                            
4
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of a notice renouncing
their right to seek review.
                                                                    7 
 
    IT IS SO ORDERED.
                             s/Brian H. Corcoran
                             Brian H. Corcoran
                             Special Master




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