              In the United States Court of Federal Claims
                                          OFFICE OF SPECIAL MASTERS
                                                    No. 02-320V
                                                Filed: May 20, 2014
                                               TO BE PUBLISHED 1

*********************************** *
JENNIFER and BARRIE GOODRIDGE, *
Parents of DG,                       *
                                     *
                        Petitioners, *                                     Attorneys’ Fees and Costs;
                                     *                                     Payment of Fees Award Directly to Counsel
                  v.                 *
                                     *
SECRETARY OF HEALTH                  *
AND HUMAN SERVICES                   *
                                     *
                        Respondent. *
                                     *
*************************************

John F. McHugh, New York, NY, for Petitioners.

Ann D. Martin, U.S. Department of Justice, Washington, DC, for Respondent



                        DECISION AWARDING ATTORNEYS’ FEES AND COSTS

HASTINGS, Special Master.

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



1
 Because I have designated this document to be published, this document will be made available to the public unless
Petitioners file, within fourteen days, an objection to the disclosure of any material in this decision that would constitute
“medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” See 42
U.S.C. § 300aa-12(d)(4)(b).
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. §300aa (2006). I will also at times refer to the statute establishing the
Program as the “Vaccine Act.”


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                                                     I

                                  PROCEDURAL BACKGROUND

       The Petitioners, Jennifer Goodridge and Barrie C. Goodridge, filed this petition on April 18,
2002, alleging that “the cumulative effects of numerous vaccinations administered between April 9 of
1998 and September 7, 1999” injured their son, DG. The case was initially assigned to Chief Special
Master Gary Golkiewicz. On July 29, 2002, the proceedings in this case were stayed pending the
completion of the general inquiry by the Office of Special Masters (“OSM”) known as the Omnibus
Autism Proceeding (“OAP”). The case was subsequently reassigned to me.

      Petitioners filed medical records in support of their claim on May 22, 2008. After reviewing the
medical records, the Secretary of Health and Human Services (“Respondent”) filed a “Statement
Regarding Whether This Claim Should Proceed” within the OAP, on July 3, 2008. In that document,
Respondent stated that there was not enough information in the record to identify the time of onset of
DG’s condition or to determine whether the petition had been timely filed.

       On March 1, 2011, after the completion of the “test “case” decisions in the OAP, I issued an
Order requiring Petitioners to indicate whether they wished to proceed with this claim or exit from the
Program. In response to that Order, Petitioners’ counsel filed a “Motion for a Decision on the Record,”
on June 10, 2011.

        On June 15, 2011, I issued an Order requiring Petitioners to identify the evidence in the record
on which they relied to support their claim for compensation, as well as any specific statements,
diagnoses, and conclusions made by medical professionals that support their claim. The Order provided
that Petitioners were to file this information no later than July 15, 2011.

        On July 18, 2011, Petitioners’ counsel filed a Response to the Order, asserting that the office had
been attempting to contact the Petitioners for instructions and information, but had not been able to find
the family for over four years. (ECF No. 23.) Petitioners’ counsel asserted that “we must ask for a
decision on the record as it stands * * *.” (Id.) On January 30, 2012, Petitioners’ counsel filed a “Motion
for a Decision on the Record.” On October 3, 2012, I issued a Decision denying the Petitioners’ claim.

        On April 30, 2012, Petitioners’ counsel filed a timely Motion for Attorneys’ Fees and Costs,
seeking a total award of $8899.56 (hereinafter “Pet. App.”), to be paid directly to Petitioners’ counsel
because he has not been able to find the Petitioners since July of 2007. Respondent filed an
“Opposition” to Petitioners’ application on May 13, 2013. (Hereinafter “Opp.”) Respondent also filed a
Joint Status Report Regarding Attorneys’ Fees and Costs on May 13, 2013, with which Petitioners’
counsel concurred.

                                                    II

               LEGAL STANDARD FOR AWARDING ATTORNEYS’ 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

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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 and costs 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).

                                                               III

                                      ISSUE RESOLVED IN THIS DECISION

        The issue in this case is whether the check for attorneys’ fees can be made payable solely to the
petitioners’ counsel when the petitioners cannot be located. 3 Respondent argues that under the Vaccine
Act a special master has no authority to order payment of an attorneys’ fees check directly to counsel.
After a careful review of the applicable statute, legislative history, and case law, I find that it is
appropriate to award the check solely to a petitioner’s counsel in such circumstances.

                                                                IV

                           APPLICABLE STATUTORY SCHEME AND CASE LAW

A. Statutory authority

        The statutory authority for awarding compensation to a petitioner is set forth at '15. Section
15(a) provides for compensation in the case of “a vaccine-related injury or death associated with the
administration of a vaccine after October 1, 1988.” '15(a), emphasis added (hereinafter, “post-Act”
cases). Compensation for injuries suffered before October 1, 1988 (“pre-Act” cases) is authorized by
'15(b), which describes a substantially different method for calculating an award. Subsection 15(b)(3)
specifies that “reasonable attorneys’ fees and costs (as provided in subsection (e) of this section),” shall
be included in the compensation awarded “to a petitioner” in pre-Act cases. In contrast, '15(a) does not
include any mention of an award for attorneys’ fees for post-Act cases. The sole authority for awarding
attorneys’ fees in post-Act cases, rather, is contained at §15(e), as described in the following paragraph.
This Goodridge petition concerns an alleged post-Act injury, so '15(e), and not §15(b), is applicable to
this request for attorneys’ fees.

       The Vaccine Act sets forth general conditions and the method for awarding attorneys’ fees at
subsection 15(e).

           (1) In awarding compensation on a petition filed under section 300aa–11 of this title the
           special master or court shall also award as part of such compensation an amount to
           cover—

           (A) reasonable attorneys' fees, and

           (B) other costs,

           incurred in any proceeding on such petition. If the judgment of the United States Court of
           Federal Claims on such a petition does not award compensation, the special master or
3
    The parties agree as to the amount ($7000) to be awarded for attorneys’ fees and costs.

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       court may award an amount of compensation to cover petitioner’s reasonable attorneys’
       fees and other costs incurred in any proceeding on such petition 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.

'15(e). These are the only provisions pertaining to attorneys’ fees in post-Act petitions, while, pre-Act
petitions have additional qualifications set forth at '15(b). As noted above, this Goodridge petition
concerns an alleged post-Act injury, so only '15(e) is applicable to an award of attorney’s fees.

B. Case law regarding fees’ awards in “unsuccessful cases”

         According to '15(e), special masters have the authority to award “reasonable” attorney’s fees
and costs in Vaccine Act cases. However, there are two types of post-Act cases described, and the
characteristics of the attorneys’ fees awards for each type are distinctly different. The two types of cases
are: 1) those which receive an award of compensatory damages (“successful”), and 2) those which do
not receive any compensatory damages (“unsuccessful”). The U.S. Supreme Court has examined these
provisions and determined that, “[a]ttorney’s fees are provided, not only for successful cases, but even
for unsuccessful claims that are not frivolous.” (Bruesewitz v. Wyeth LLC, 131 S.Ct. 1068, 1074 (2011).)
In this Goodridge case, there was no award of compensatory damages to the Petitioners, so the
applicable provision concerns an “unsuccessful” claim.

        Within the context of a different “unsuccessful” petition, the U.S. Court of Appeals for the
Federal Circuit reviewed '15(e) and concluded that “[t]he determination of the amount of reasonable
attorneys’ fees and costs 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). The Saxton opinion further
states that, “[i]f the petition for compensation is denied, the special master ‘may’ award reasonable fees
and costs if the petition was brought in good faith and upon a reasonable basis; the statute clearly gives
him discretion over whether to make such an award.” 3 F.3d at 1520.

       In Sebelius v. Cloer, 133 S. Ct. 1886, 2013 WL 2149791 (2013), the U.S. Supreme Court
addressed the possibility of awarding attorney’s fees in a Vaccine Act case, when the original petition
was untimely filed. The Court observed that “[t]he text of the statute is clear: like any other
unsuccessful petition, an untimely petition brought in good faith and with a reasonable basis that is filed
with * * * the Court of Federal Claims is eligible for an award of attorney’s fees.” (Id. at 1895.) The
Supreme Court further opined that the Vaccine Act provides for an award of attorneys’ fees “‘in any
proceeding [on an unsuccessful] petition’ if such petition was brought in good faith and with a
reasonable basis, 42 U.S.C. ' 300aa-15(e)(1), irrespective of the reasons for the petition’s failure.” (Id.
at 1896, emphasis in original.) In citing this language from the Vaccine Act, the Supreme Court placed
emphasis on the word “any,” which was used to describe the type of proceeding that would qualify for
an award of attorneys’ fees and costs; that is, “any proceeding on a petition” would qualify. Further, the
Court included the clarification that attorneys’ fees and costs may be compensable for work performed
on an unsuccessful petition, “irrespective of the reasons for the petition’s failure.” (Id.)

       In two early Vaccine Act cases involving pre-Act petitions, it was ruled that it was not
appropriate to order that an award of attorneys’ fees and costs be made payable directly to petitioners’
counsel. Heston v. HHS, 41 Fed. Cl. 41 (1998); Newby v. HHS, 41 Fed. Cl. 392 (1998).

                                                     4
       However, in three recent Vaccine Act decisions, all in post-Act cases, special masters have
ordered that a fees and costs award be made payable directly to petitioners’ counsel, in circumstances in
which the counsel could no longer make contact with the petitioners. Gitesatani v. HHS, 09-799v, 2011
WL 5025006 (Fed. Cl. Spec. Mstr. Sep. 30, 2011); Tutza v. HHS, No. 04-223V, 2012 WL 2362594
(Fed. Cl. Spec. Mstr. April 20, 2012); Turner v. HHS, No. 02-1437V, 2014 WL 1493119, at *8 (Fed. Cl.
Spec. Mstr. Mar. 26, 2014). In another recent such case, a special master similarly noted that “I
maintain that under certain narrow circumstances, a special master may award fees and costs directly to
counsel, who is the real party in interest in all fees application.” Ortiz-Mutilitis v. HHS, No. 03-59V,
2012 WL 3902472, at fn. 9 (Fed. Cl. Spec. Mstr. Aug. 14, 2012).

                                                     V

                                             RESOLUTION

       In this case, petitioners’ counsel requested that the check for fees and costs be made payable to
counsel himself. Respondent argued that such procedure would be legally inappropriate.

A. Summary

     I find that, in this “post-Act” Vaccine Act case, the reasoning of the opinions in the four “post-
Act” cases, cited above, is more persuasive than that in the two “pre-Act” cases cited. I reach that
conclusion in part because of the distinct difference between the statutory language applicable to pre-
Act vs. post-Act cases, and in part because of the strong direction, of both the legislative history and the
Supreme Court and the Federal Circuit, that attorneys who assist Vaccine Act petitioners in good-faith,
reasonably-filed cases should be compensated for their efforts.

B. Statutory differences between pre-Act and post-Act cases

      As described above, the language describing the statutory authority for granting fees and costs in
pre-Act cases is quite different from the language used for post-Act cases. As noted above, the statutory
authority for awarding compensation to a petitioner is set forth at §15. Section 15(a) provides for
compensation in cases where the vaccinee’s injury occurred on or after October 1, 1988--that is, “post-
Act” cases. Compensation for injuries suffered before October 1, 1988--i.e., “pre-Act” cases”--is
authorized by §15(b), which describes a substantially different method for calculating an award.
Subsection 15(b) specifies that “reasonable attorneys’ fees and costs (as provided in subsection (e) of
this section),” shall be included in the compensation awarded “to a petitioner” in pre-Act cases. In
contrast, §15(a) does not include any mention of an award for attorneys’ fees for post-Act cases. The
sole authority for awarding attorneys’ fees in post-Act cases, rather, is contained at §15(e), as described
in the following paragraph. Section 15(e) states that--

       (1) In awarding compensation on a petition filed under section 300aa–11 of this title the
       special master or court shall also award as part of such compensation an amount to
       cover—
       (A) reasonable attorneys' fees, and
       (B) other costs,

                                                     5
       incurred in any proceeding on such petition. If the judgment of the United States Court of
       Federal Claims on such a petition does not award compensation, the special master or
       court may award an amount of compensation to cover petitioner’s reasonable attorneys’
       fees and other costs incurred in any proceeding on such petition 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.

These sentences of §15(e) are the only provisions pertaining to attorneys’ fees in post-Act cases, while
pre-Act cases are governed by the additional qualifications of §15(b), quoted in the prior paragraph.

      The crucial difference, therefore, is the specific notation in §15(b) that attorneys’ fees awards in
pre-Act cases are made specially “to a petitioner,” while the “to a petitioner” language is absent from the
language of §15(e), which provides the only provision governing awards of attorneys’ fees in post-Act
cases.

      In Heston v. HHS, 41 Fed. Cl. 41 (1998), the judge relied specifically upon the “to a petitioner”
language of §15(b), in holding that an attorneys’ fees award in that pre-Act case necessarily must be
made to the petitioner herself, not to the petitioner’s attorney. Id. at 43. Similarly, one month later, in
Newby v. HHS, 41 Fed. Cl. 392 (1998), another judge of this court relied specifically on Heston, in again
holding that an attorneys’ fees award in a pre-Act case could not be made payable directly to the
petitioner’s attorney. Id. at 393. The judge in Newby, like the judge in Heston, specifically relied on the
“to a petitioner” statutory language of §15(b). Id. at 394.

       In contrast to the Heston and Newby opinions issued in 1998, however, the four recent opinions
cited above all involved post-Act cases. Gitesatani v. HHS, 09-799V, 2011 WL 5025006 (Fed. Cl. Spec.
Mstr. Sep. 30, 2011); Tutza v. HHS, No. 04-223V, 2012 WL 2362594 (Fed. Cl. Spec. Mstr. April 20,
2012); Turner v. HHS, No. 02-1437V, 2014 WL 1493119, at *8 (Fed. Cl. Spec. Mstr. Mar. 26, 2014);
Ortiz-Mutilitis v. HHS, No. 03-59V, 2012 WL 3902472, at fn. 9 (Fed. Cl. Spec. Mstr. Aug. 14, 2012).
In all four cases, the special masters concluded that §15(e), as it applies to post-Act cases, affords a
special master with discretion to make an award of attorneys’ fees directly to counsel in appropriate
circumstances.

     In Gitesatani, indeed, the special master specifically distinguished the post-Act case before her
from the Heston and Newby decisions, just as I do here, precisely because of the differing statutory
language applicable to attorneys’ fees awards in pre-Act and post-Act cases. 2011 WL 5025006 at *2-4.

      In Tutza, the special master likewise discussed the Heston opinion, but found the Heston precedent
to be inapplicable to Tutza, which was a post-Act case. 2012 WL 2362594 at *1. As in Gitesatani, the
special master in Tutza found it crucial that §15(e), the attorneys’ fees provision applicable to post-Act
cases, did not contain the “to a petitioner” language of §15(b). Id.

C. Strong policy reasons support my conclusion here

      In addition to the statutory language differences regarding pre-Act and post-Act cases, there are
also very strong policy reasons supporting my conclusion here. As explained above, the statute itself
specifies that a special master may make an award of attorneys’ fees even in an unsuccessful Vaccine

                                                    6
Act. It is clear that this provision is designed to help Vaccine Act petitioners to obtain assistance from
attorneys in prosecuting their cases. The U.S. Court of Appeals for the Federal Circuit has noted that:
“One of the underlying purposes of the Vaccine Act was to ensure that vaccine injury claimants have
readily available a competent bar to prosecute their claim.” Avera v. HHS, 515 F. 3d 1343, 1352 (Fed.
Cir. 2008). And the Supreme Court recently added that a key purpose of the scheme for awarding
attorneys’ fees and costs under Vaccine Act is “to avoid ‘limit[ing] petitioners’ ability to obtain
qualified assistance’ by making fees awards available for ‘non-prevailing, good faith claims.’” Sebelius
v. Cloer, supra, 133 S. Ct. at 1895, citing H.R. Rept. No. 99-908, pt. 1, p. 22 (1986) (hereinafter “H.R.
Rept.”).

      A further exploration of the legislative history cited by the Supreme Court in Sebelius shows that
the Congressional committee that drafted the Vaccine Act did “not intend that the limitation of fees to
those included in the award act[s] to limit petitioners’ ability to obtain qualified assistance and intends
that the court make adequate provision for attorneys’ time and that the court exercise its discretion to
award fees in non-prevailing, good-faith claims.” H.R. Rept. at 22; see also Sebelius v. Cloer, 133 S. Ct.
at 1895. Special masters are thereby instructed to exercise their discretion concerning fees and awards
so as to compensate the attorneys of all petitioners who file reasonable, good faith claims, because doing
otherwise would discourage the participation of qualified attorneys in the petitioners’ bar. There is no
indication that Congress intended to exclude payments to counsel whose former clients are unable or
unwilling to support payment of fees for their former attorneys.

      In this case, the petition was unsuccessful. However, it is clear from the statute, legislative history,
and case law that awards of attorneys’ fees and costs may be appropriate even in unsuccessful cases.
And it is clear that affording compensation to Vaccine Act counsel in all good-faith, reasonably-filed
cases will benefit all Vaccine Act petitioners, by assisting them in obtaining counsel. Indeed, attorneys
who contemplate representing a petitioner under the Vaccine Act are aware that such claims are often
unsuccessful. But if I were to adopt the approach suggested by the Respondent in this case, a potential
attorney would face the possibility that he or she might not be compensated for work reasonably
performed, if an unsuccessful petitioner cannot be located or declines to cooperate with his attorney or
the court. Discouraging potential attorneys in this way would contradict the stated intentions of the
drafters of the Vaccine Act.

      This very policy consideration, indeed, was strongly stressed by the special master in Gitesatani
who, citing Federal Circuit language in Avera and other cases, noted that in those rare Vaccine Act cases
in which the payment would otherwise not likely make its way to counsel, directing payment directly to
the attorney would promote the clear Congressional purpose of encouraging attorneys to accept
representation for Vaccine Act petitioners. 2011 WL 5025006 at *4-8.

       Similarly, the special master in Tutza stressed that permitting payment directly to the attorney, in a
situation in which the attorney likely would not otherwise receive the intended compensation, would
fulfill the Congressional intent to encourage attorneys to assist Vaccine Act petitioners. 2012 WL
2362594 at *2.

      Like the special masters in Gitesatani and Tutza, I strongly agree that awarding fees directly to
counsel in this type of situation clearly would support the Congressional intent of encouraging attorneys
to assist Vaccine Act petitioners.

                                                      7
                                                     VI

                                              CONCLUSION

      For the reasons set forth above, I conclude that awarding fees directly to the attorney in this case is
fully justified under the statutory language; is not contrary to the pre-Act case precedent of Heston and
Newby, and is supported by the unanimous post-Act case precedent of Gitesatani, Tutza, Turner, and
Ortiz-Mutillis. Most importantly, awarding fees directly to the attorney in this case would be supportive
of the intent of Congress as indicated in the statute and legislative history, and as interpreted in the
Federal Circuit and Supreme Court opinions cited above.

      I find that this petition was brought in good faith, and that there existed a reasonable basis for the
claim, so that an award for fees and costs is appropriate, pursuant to 42 U.S.C. § 300aa-15(e)(1). In
addition, the proposed amount seems reasonable and appropriate.

    Accordingly, I hereby award the total of $7,000.00 in a lump sum, in the form of a check
payable to Petitioners’ counsel of record, John H. McHugh. The check shall be sent to:

                       John H. McHugh
                       Law Offices of John McHugh
                       233 Broadway
                       Suite 2320
                       New York, NY 10279

In the absence of a timely-filed motion for review filed pursuant to Appendix B of the Rules of the U.S.
Court of Federal Claims, the clerk of the court shall enter judgment in accordance herewith.

IT IS SO ORDERED.



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




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