In the United States Court of Federal Claims
                                     OFFICE OF SPECIAL MASTERS
                                             No. 08-209V
                                          (Not to be published)

*************************
BRET KREIZENBECK and                      *
SANDRA KREIZENBECK as legal               *                      Chief Special Master Corcoran
representatives of a minor child, C.J.K., *
                                          *
                      Petitioners,        *                      Filed: September 15, 2020
                                          *
               v.                         *
                                          *                      Attorney’s Fees and Costs; Attorney
SECRETARY OF HEALTH AND                   *                      Rates; Expert Costs
HUMAN SERVICES,                           *
                                          *
                      Respondent.         *
                                          *
 *************************

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioners.

Julia Collison, U.S. Dep’t of Justice, Washington, DC, for Respondent.


                   DECISION AWARDING ATTORNY’S FEES AND COSTS 1

        On March 26, 2008, Bret and Sandra Kreizenbeck, on behalf of their son, C.J.K., filed a
petition seeking compensation under the National Vaccine Injury Compensation Program
(“Vaccine Program”). 2 The Kreizenbecks allege that the childhood vaccines (Diphtheria Tetanus
acellular Pertussis, measles-mumps-rubella, Varicella, HiB and pneumococcal conjugate vaccines
C.J.K. received on April 1, 2005, and the influenza vaccine he received on October 12, 2005,
significantly aggravated his underlying, but asymptomatic and subclinical, mitochondrial disorder,

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). This means the Decision will be available to anyone with access
to the internet. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published
Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has 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 entire Decision will be available in its current form.

 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, 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act.
causing him to suffer from immune system dysfunction, or hypogammaglobulinemia. Amended
Petition at 1–2, dated Feb. 22, 2012 (ECF No. 27) (“Amended Pet.”). I issued a decision denying
entitlement in the case on June 22, 2018 (ECF No. 127). Petitioners subsequently sought review
at the Court of Federal Claims and the Court of Appeals for the Federal Circuit, both of which
upheld my Decision. See ECF Nos. 135, 140.

        In October 2015, the parties stipulated to an interim award of fees and costs, providing that
Petitioners’ counsel should receive $81,000.00 in attorney’s fees and $250.00 in costs for work
performed on the matter up to that date. Stipulation for Fees, filed Oct. 19, 2015 (ECF No. 92).
Now, Petitioners have filed a motion for a final award of attorney’s fees and costs reflecting all
remaining work performed in this case. Final Motion for Attorney’s Fees and Costs, filed June 18,
2020 (ECF No. 146) (“Fees App.”).

        As the pending motion indicates, Petitioners request an award of $121,680.61 (representing
$102,678.40 in attorney’s fees, plus $19,002.21 in costs), for the work of several attorneys (Mr.
Richard Gage, Esq.; Ms. Kristen Blume, Esq.; Ms. Kayla Spencer, Esq.; and Mr. Dustin Lujan,
Esq.) on the matter from 2015 to the present, including appellate briefing, as well as the supportive
work of two paralegals.

The costs requested include postage, legal research charges,
travel expenses, expert fees, and copying fees. Fees App. at 57–59. 3

        Respondent reacted to the fees request on June 22, 2020. See Response, dated June 22,
2020 (ECF No. 147). He indicates in his Response that he is satisfied that the statutory
requirements for an attorney’s fees and costs award are met in this case but defers to my discretion
the calculation of a proper amount to be awarded.

                                                  ANALYSIS

    A. Petitioners’ Claim had Reasonable Basis

        I have in prior decisions set forth at length the criteria to be applied when determining if a
claim possessed “reasonable basis” sufficient for a fees award. See, e.g., Allicock v. Sec’y of Health
& Hum. Servs., No. 15-485V, 

, at *4–5 (Fed. Cl. Spec. Mstr. May 26, 2016),
aff’d on other grounds, 

(2016); Gonzalez v. Sec’y of Health & Hum. Servs., No.
14-1072V, 

, at *5–6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short, a petitioner
can receive a fees award even if his claim fails, but to do so he must demonstrate the claim’s
reasonable basis through some objective evidentiary showing. Simmons v. Sec’y of Health & Hum.
Servs., 

, 635 (Fed. Cir. 2017); see also Chuisano v. Sec’y of Health & Hum. Servs.,

, 286 (2014) (citing McKellar v. Sec’y of Health & Hum. Servs., 

,
3
 Petitioners did not file a General Order No. 9 Statement in connection with their fee application (and counsel does
not request any costs personally incurred by Petitioners). Fees App. at 81.


                                                         2
303 (2011)). The standard for reasonable basis is lesser (and inherently easier to satisfy) than the
preponderant standard applied when assessing entitlement, as cases with reasonable basis (because
they have objective proof supporting the claim) can nevertheless still fail to establish causation-
in-fact. Braun v. Sec’y of Health & Hum. Servs., 

, 77 (Fed. Cl. 2019).

        The Court of Appeals for the Federal Circuit recently clarified the standards used to
evaluate whether a claim has reasonable basis, noting that special masters should consider the
totality of the circumstances in evaluating a claim for reasonable basis. Cottingham v. Sec’y of
Health & Hum. Servs., --- F.3d ---, 

, at *4–5 (Fed. Cir. 2020). Additionally, the
following factors are considered when determining if there was a reasonable basis for the claim:
(1) factual basis, (2) medical support, and (3) the attorney’s diligence in bringing the claims. Carter
v. Sec’y of Health & Hum. Servs., 

, 378 (Fed. Cl. 2017).

       Here, I find Petitioners’ claim had sufficient objective basis to entitle them to a fee award
under the applicable reasonable basis analysis. This claim originally alleged autism and
developmental delay following vaccination—a kind of claim that can no longer be deemed to have
any reasonable basis in the Program, given the multitude of decisions written over the past ten-
plus years discrediting the objective grounds for that causation theory. But Petitioners ultimately
abandoned those allegations, and instead recast the claim to allege mitochondrial disorder and
immune dysfunction. See generally Amended Pet. Although the revised version of the claim was
also unsuccessful, it did have some objective support in the record, and was supported by a credible
expert opinion from Dr. Boles. Accordingly, a final fees award is justified.

        I note, however, that reinventing a claim as time passes, jettisoning theories in real time
when it becomes evident they will fail while attempting to generate new ones (often by seeking
second or third treater opinions for a different diagnosis) that might have a better chance of success,
is a practice that is not to be encouraged. There is a vast difference between amendment of a theory
to conform to the facts and wholesale reinvention of a claim when its deficiencies are laid bare.
And the Vaccine Program’s generosity and flexibility is not an invitation to file claims with little
substantive basis at the time of initiation, in the hope that the claim will later “find” a good
causation theory. Counsel who “shift gears” in this manner in the future should not expect
compensation for their time.

   B. Attorney’s Fees

       Determining the appropriate amount of the fees award is a two-part process. The first part
involves application of the lodestar method—“multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs.,

, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 

, 888 (1984)).
The second part involves adjusting the lodestar calculation up or down to take relevant factors into
consideration.

This standard for calculating a fee award is considered applicable in



                                                  3
most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 

,
429–37 (1983).

        An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate on the forum in which the relevant court sits (Washington, D.C., for Vaccine
Act cases), except where an attorney’s work was not performed in the forum and there is a
substantial difference in rates (the Davis exception). 

(citing Davis Cty.
Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 

, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges for attorneys with
different levels of experience who are entitled to the forum rate in the Vaccine Program. See
McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 

, at *19 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015).

        Petitioners seek a variety of hourly rates for the different professionals who worked on the
case from 2015 to the present. For Mr. Gage, Petitioners ask for a rate of $300 per hour for work
performed in 2015, $311 per hour for work performed in 2016, $318 per hour for work performed
in 2017, $326 per hour in 2018, $338 per hour for work performed between 2019 and April 2020,
and $350 per hour for work performed in June 2020. Fees App. at 29–37. For Ms. Blume,
Petitioners ask for $251 per hour for work performed in 2016, $260 per hour for work performed
in 2017, $270 per hour for work performed in 2018, $338 per hour for work performed in 2019,
and $350 per hour for work performed in 2020.

For Ms. Spencer, Petitioner requests
$145 per hour for work performed between 2016-2017.

And for Mr. Lujan, Petitioners
request $145 per hour for work performed between 2015-2016.

In addition, Petitioner
seeks a rate of $120 per hour for work completed by two paralegals.

       Whether the attorneys practicing at Richard Gage & Associates, located in Cheyenne,
Wyoming, are “in-forum,” and therefore entitled to the forum rates established in McCulloch is
undetermined. I find, however, that the rates requested for work performed by Mr. Gage, Ms.
Spencer, Mr. Lujan, and paralegals in this matter are consistent with those previously awarded in
other matters. Thus, I grant in full the hourly rates requested for these attorneys or legal assistants.

        The rates requested for work performed by Ms. Blume, however, require adjustment. While
the rates requested for 2016, 2019, and 2020 are consistent with what Ms. Blume has received on
prior occasions, the requested rates for work performed in 2017 and 2018 exceed her previously-
approved rates. See Demitor v. Sec’y of Health & Hum. Servs., No. 17-564V, 

,
at *5 (Fed. Cl. Spec. Mstr. Feb. 7, 2020) (awarding Ms. Blume $251 per hour for work completed
in 2017); Martin v. Sec’y of Health & Hum. Servs., No. 13-486V, 

, at *3 (Fed.
Cl. Spec. Mstr. Apr. 23, 2019) (awarding Ms. Blume $251 per hour for work completed in 2018).

       Petitioners note that I effectively adopted an increased rate of $270 per hour for 2018 work
performed by Ms. Blume in a recent fees decision. Memorandum in Support of Fees App., filed
on June 18, 2020 (ECF No. 146-1) (citing Oberheim v. Sec’y of Health & Hum. Servs., No. 17-


                                                   4
725, 

, at *1 (Fed. Cl. Spec. Mstr. Jan. 10, 2020). However, Oberheim was an
SPU fees decision containing no discussion regarding the propriety of the rates awarded therein to
Ms. Blume—a fact recognized in Demitor (which reasoned its way to awarding her the lesser sum
of $251 per hour for 2017). Demitor, 

, at *5. I also note that retroactive rate
increases are reasonably disfavored in the Program. Ramirez v. Sec’y of Health & Hum. Servs.,
No. 16-1180V, 

, at *2 (Fed. Cl. Spec. Mstr. Jan. 30, 2019) (counsel “should only
submit billing logs that reflect the hourly rate previously awarded to him”).

       Thus, after a careful analysis of the requested hours and work performed in this matter, as
well as Ms. Blume’s overall qualifications, and reasoned prior decisions, I will apply the more
widely adopted rate of $251 per hour for work performed in 2017 and 2018, resulting in a total
deduction of $1,312.60. 4

    C. Attorney’s Costs

        I will next turn to costs. Just as they are required to establish the reasonableness of
requested fees, petitioners must also demonstrate that requested litigation costs are reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 

, 34 (Fed. Cl. 1992); Presault v. United
States, 

, 670 (Fed. Cl. 2002). When petitioners fail to carry their burden, such as
by not providing appropriate documentation to substantiate a requested cost, special masters have
refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec’y of Health & Hum. Servs.,
No. 99-480V, 

, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

        Petitioner requests $19,002.21 in overall costs. Fees App. at 57–59. This amount includes
the cost of postage, legal research charges, travel expenses, expert fees, and copying fees.

typical of Vaccine Program litigation, but some adjustments are necessary.

        Petitioners indicate that Dr. Boles performed 22.5 hours of work and billed at a rate of
$500.00 per hour. Fees App. at 64. But I have previously found $500.00 per hour to be too high
for Dr. Boles (who only recently began offering opinions in the Program) and have instead
compensated him at a rate of $350.00 per hour. Sharpe v. Sec’y of Health & Hum. Servs., No. 14-
065V, 

, at *3 (Fed. Cl. Spec. Mstr. July 6, 2018); L.M. v. Sec’y of Health &
Hum. Servs., No. 14-714V, 

, at *4 (Fed. Cl. Spec. Mstr. Sept. 29, 2017). Other
special masters have awarded Dr. Boles a similar rate. See A.A. v. Sec’y of Health & Hum. Servs.,
No. 15-597V, 

, at *6 (Fed. Cl. Spec. Mstr. May 31, 2018) (awarding Dr. Boles
$350.00 per hour); Dempsey v. Sec’y of Health & Hum. Servs., No. 04-394V, 

,
at *8 (Fed. Cl. Spec. Mstr. Nov. 16, 2017) (awarding him $300.00 per hour).



4
 In 2017, Ms. Blume completed 50 hours of work, and in 2018, she completed 45.4 hours of work. Fees App. at 39–
42. The reduction to Ms. Blume’s rates were calculated as follows: ((50 x $260) – (50 x $251)) + ((45.4 x $270) –
(45.4 x $251)) = $1,312.60.


                                                       5
       I am amenable in the future to increasing the hourly rate paid to Dr. Boles, especially as he
continues to perform expert services in the Program, but do not find that the rate he has requested
is appropriate for this case (in which the work he did was performed approximately three years
ago, when $500 per hour reflected the highest sum paid only to the most experienced Program
experts). Accordingly, I will award Dr. Boles $350.00 per hour for work performed in this matter.
I do not otherwise find any of the time billed by Dr. Boles to be objectionable, and Respondent
has not indicated any entries found to be objectionable either. Therefore, Dr. Boles will be
compensated for the full time he has billed at the aforementioned rate. No other reductions are
warranted, and the total deduction for this cost element is $3,375.00.


                                                 CONCLUSION

        For the reasons stated above, I GRANT IN PART Petitioners’ motion for attorney’s fees
and costs. An award of $116,993.01 (representing $101,365.80 in attorney’s fees, plus $15,627.21
in costs) shall be made in the form of a check payable jointly to Petitioners and Petitioners’ counsel,
Mr. Richard Gage, Esq. The total amount awarded above is based on the rates below:

                          Requested                        Awarded                              Difference
    Mr. Gage         $45,262.70                    $45,262.70                          $0.00
    Ms. Blume        $52,035.20                    $50,722.60                          $1,312.60
    Ms. Spencer      $72.50                        $72.50                              $0.00
    Mr. Lujan        $1,392.00                     $1,392.00                           $0.00
    Paralegal        $3,916.00                     $3,916.00                           $0.00
    Costs            $19,002.21                    $15,627.21                          $3,375.00
    Total            $121,680.61                   $116,993.01                         $4,687.60



       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation. 5


         IT IS SO ORDERED.
                                                                       /s/ Brian H. Corcoran
                                                                          Brian H. Corcoran
                                                                          Chief Special Master




5
 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.

                                                           6