      In the United States Court of Federal Claims
                                           No. 02-1616V
                                      Filed: January 7, 2014
                                       Not to be Published

****************************
MICHAEL SMALL and             *
TERI ARRANGA, parents of      *
I.M.S., a minor,              *
                              *
                 Petitioners, *                        Autism; Interim Attorneys’ Fees and
                              *                        Costs
       v.                     *
                              *
SECRETARY OF HEALTH           *
AND HUMAN SERVICES,           *
                              *
                 Respondent.  *
                              *
****************************

          DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

        On November 15, 2002, petitioners filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.2 [the
“Vaccine Act” or “Program”], alleging that I.M.S. was injured by a vaccine or vaccines
listed on the Vaccine Injury Table.

       On May 25, 2012, petitioners filed a motion for attorneys’ fees and costs incurred
by petitioners’ former3 counsel, Jerrod S. Parker. In the motion, petitioners indicated

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  Because this unpublished decision contains a reasoned explanation for the action in this case,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)). In accordance with Vaccine Rule
18(b), a party has 14 days to identify and move to delete medical or other information, that
satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
I agree that the identified material fits within the requirements of that provision, I will delete such
material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2006).
3
 Petitioners filed a consented motion to substitute Edward Kraus as attorney of record on June
8, 2012.
that respondent opposes the request for attorneys’ fees and costs due to their interim
nature and respondent’s belief that the case was untimely filed. Motion, filed May 25,
2012, at 1.

       For the reasons outlined below, I find that an award of interim attorneys’ fees and
costs is appropriate in this case.

                                  I. The Applicable Law.

        Although the Vaccine Act itself is silent on the issue of interim awards of fees and
costs, it is now clear that interim fees and costs may be awarded in Vaccine Act cases.
Avera v. Sec’y, HHS, 515 F.3d 1343, 1352 (Fed. Cir. 2008); Cloer v. Sec’y, HHS, 675
F.3d 1358, 1362 (Fed. Cir. 2012). Prevailing on the merits is not a requirement for any
Program award for fees and costs, but unsuccessful litigants must demonstrate that
their claim was brought in good faith, a subjective standard, and upon a reasonable
basis, an objective standard. § 15(e)(1); Perreira v. Sec’y, HHS, No. 90-847V, 1992 WL
164436, at *1 (Cl. Ct. Spec. Mstr. June 12, 1992) (describing good faith as subjective
and reasonable basis as objective), aff’d, 27 Fed. Cl. 29 (1992), aff’d, 33 F.3d 1375
(Fed. Cir. 1994). Thus, a Vaccine Act litigant seeking an award of fees and costs before
entitlement to compensation is determined must, at a minimum establish good faith and
a reasonable basis for the claim. See Avera, 515 F.3d at 1352.

        Likewise, the Supreme Court has held that a “petition found to be untimely may
qualify for an award of attorney's fees if it is filed in good faith and there is a reasonable
basis for its claim.” Sebelius v. Cloer, 133 S.Ct. 1886, 1896-97 (2013). Thus, a
petitioner whose claim was dismissed because it was determined to be untimely filed,
like a petitioner whose claim is unsuccessful on the merits, may receive an award of
attorneys’ fees and costs. Id. at 1895. The Justices expressed their confidence in the
special masters’ ability to determine if good faith and reasonable basis existed,
indicating “the special masters have shown themselves more than capable of discerning
untimely claims supported by good faith and a reasonable basis from those that are
specious.” Id. at 1896.

       It is clear that interim fees and costs need not be awarded in all circumstances,
although the factors that delineate when an interim award is appropriate remain
somewhat muddled. See Shaw v. Sec’y, HHS, 609 F.3d 1372, 1375 (Fed. Cir. 2010);
Avera, 515 F.3d at 1352. In Avera, the Federal Circuit noted that “[i]nterim fees are
particularly appropriate in cases where proceedings are protracted and costly experts
must be retained.” Avera, 515 F.3d at 1352. It has also held that “[w]here the claimant
establishes that the cost of litigation has imposed an undue hardship and that there
exists a good faith basis for the claim, it is proper for the special master to award interim
attorneys’ fees.” Shaw, 609 F.3d at 1375. Nonetheless, “[t]he special master may
determine that she cannot assess the reasonableness of certain fee requests prior to
considering the merits of the vaccine injury claim.” Id. at 1377.




                                              2
                      II. Good Faith and Reasonable Basis Exist.

        The Omnibus Autism Proceeding [“OAP”] was created to deal efficiently and
fairly with an unprecedented number of cases that threatened to overwhelm the bench
and bar alike. See generally Autism Gen. Order #1, 2002 WL 31696785 (Fed. Cl. Spec.
Mstr. July 3, 2002). By filing a short form petition, petitioners opted to participate in the
OAP. Id. at *6.

        As a reasonable basis was found in each of the OAP test cases, it follows that
petitioners in the instant case likewise had a reasonable basis at least until the
resolution of the test cases.4 Thereafter, activity in this case has concerned determining
whether petitioners wish to continue to pursue their claim, followed by the substitution of
Edward Kraus as attorney of record, activity which I find to have been undertaken in
good faith and upon a reasonable basis.

        Although respondent argues that this case was filed two months after the
expiration of the Vaccine Act’s statute of limitations (Motion to Dismiss, filed June 24,
2008, at 1), petitioners maintain that the petition was timely filed (Response, filed Jan.
26, 2009, at 1). After examining the parties’ arguments on this issue, I determined that
it would “be difficult at this time to ascertain whether the claim was timely filed” and
deferred ruling on this issue. Order, issued Jan. 29, 2013, at 2. Recognizing that I may
rule, at a later date, that the petition was untimely filed, I find that it was not
unreasonable for petitioners to have filed their claim. Thus, the petition was filed in
good faith and with a reasonable basis.

                   III. An Interim Award is Appropriate at the Time.

         Respondent argues an award of interim attorneys’ fees and costs is inappropriate
at this time and urges the court to deny petitioners’ motion until the case is concluded or
such time as an interim award is appropriate under Avera v. Sec’y, HHS, 515 F.3d 1343
(Fed. Cir. 2008). Response, filed June 11, 2012, at 1. Respondent, citing Avera, 515
F.3d at 1352, argues that interim attorneys’ fees and costs are available in only the
following limited circumstances: “protracted proceedings, significant expert costs, or
where petitioner had suffered undue hardship.” Id. at 1-2. Respondent argues that
such circumstances are not present in this case and the withdrawal of counsel does not
fall into these limited circumstances. Id. I disagree in the instant case, but recognize
that the withdrawal of counsel alone may not always provide sufficient justification for an
award of interim attorneys’ fees. See McKellar v. Sec’y, HHS, 101 Fed. Cl. 297, 301
(2011) (finding that “some special showing is necessary to warrant interim fees,

4
 The OAP theory 1 test cases were Cedillo v. Sec’y, HHS, No. 98-916V, 2009 WL 331968
(Fed. Cl. Spec. Mstr. Feb. 12, 2009), Hazlehurst v. Sec’y, HHS, No. 03-654V, 2009 WL 332306
(Fed. Cl. Spec. Mstr. Feb. 12, 2009), and Snyder v. Sec’y, HHS, No. 01-162V, 2009 WL 332044
(Fed. Cl. Spec. Mstr. Feb. 12, 2009). The OAP theory 2 test cases were Dwyer v. Sec’y, HHS,
No. 03-1202V, 2010 WL 892250 (Fed. Cl. Spec. Mstr. Mar. 12, 2010), King v. Sec’y, HHS, No.
03-584V, 2010 WL 892296 (Fed. Cl. Spec. Mstr. Mar. 12, 2010), and Mead v. Sec’y, HHS, No.
03-215V, 2010 WL 892248 (Fed. Cl. Spec. Mstr. Mar. 12, 2010).

                                              3
including but not limited to the delineated [Avera] factors . . . .”).

      This case is now over eleven years old. Granted, a substantial portion of those
eleven years can be attributed to delays at petitioners’ request. This case, like the
thousands of other OAP cases, remained in a holding pattern until the petitioners’ bar
was ready to present their causation cases, those cases were tried, decisions issued,
and appeals resolved. With the last of the appeals resolved in August, 2010, the court
began ordering the remaining 4800 OAP petitioners to file an amended petition if they
wished to continue to pursue their entitlement claims. In July, 2011, petitioners were
ordered to do so.

        Nothing in Avera requires the court to apportion “fault” in evaluating whether the
proceedings have been protracted. The OAP was created to deal efficiently and fairly
with an unprecedented number of cases that threatened to overwhelm the bench and
bar alike. See generally Autism Gen. Order #1, 2002 WL 31696785. While it is certainly
possible that this case could have been litigated outside the OAP, as some autism
cases were, petitioners’ participation in the OAP permitted the court and respondent to
devote resources to cases outside the OAP as well as to the consolidated discovery
and hearing processes within the OAP. I also note that the years during which this
petition sat dormant in the OAP allowed respondent to reap benefits from the
advancements in scientific understanding of autism spectrum disorders.

       Mr. Parker diligently represented petitioners for a number of years while this
claim was pending in the court’s protracted OAP proceedings. Although an attorney’s
desire to withdraw may not, standing alone, mandate the award of fees and costs on an
interim basis (McKellar, 101 Fed. Cl. at 302), the termination of the attorney-client
relationship is not the only factor present here. I find that the proceedings in this case
have been protracted. Additional delay is likely and it is impossible at present to
determine how much time will yet be required to resolve question of entitlement to
compensation. Petitioners and their current counsel filed their amended petition on
September 26, 2013 and now are attempting to file an expert report. Under these
circumstances, petitioners have established a sufficient basis to warrant the award of
fees and costs on an interim basis. Petitioners’ counsel has represented that this
interim application for fees and costs represents the final application he will file for his
fees and costs in this case.

                                       IV. Conclusion

         I hold petitioners are entitled to reasonable 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 amounts requested are reasonable and appropriate. In lieu
of filing a Vaccine General Order #9 statement, petitioners’ former counsel represents
that he will reimburse petitioners any costs that petitioners personally incurred that are
compensable under § 15 (e)(1).




                                                4
       Although respondent has challenged whether fees and costs may be awarded on
an interim basis in this case, the parties have agreed on the amount of fees and costs
incurred by Mr. Parker. I adopt the parties’ agreement, and pursuant to § 15(e), I
award a lump sum of $9,845.005 to be paid in the form of a check payable jointly
to the petitioners and petitioners’ counsel, Parker and Waichman. The interim
award check shall be mailed directly to Mr. Parker, who is located at 111 Great
Neck Road, 1st Floor, Great Neck, NY 11021.

       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. Pursuant to Vaccine Rule 11(a), the parties may expedite entry
of judgment by filing a joint notice renouncing the right to seek review.

IT IS SO ORDERED.

                                     s/Denise K. Vowell
                                     Denise K. Vowell
                                     Chief Special Master




5
  This amount is intended to cover all legal expenses incurred in this matter by attorney Jerrod
S. Parker. This award encompasses all charges by the attorney against a client, “advanced
costs” as well as fees for legal services rendered. Furthermore, § 15(e)(3) prevents an attorney
from charging or collecting fees (including costs) that would be in addition to the amount
awarded herein. See generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir. 1991).


                                               5
