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 Fed. 3d at 1520.
Ofcoui'se, in considering evidence and making a determination concerning the good faith
and reasonableness of a petition and whether it is appropriate to award attorney’s fees and costs,
the court is guided by the Vaccine Act itself. The Vaccine Act describes the scope of the special
master’s authority with regard to gathering evidence that is relevant to attorney’s fees, or any
other aspect of a petition, as follows:
in conducting a proceeding on a petition a special master--
(i) may require such evidence as may be reasonable and necessary,
(ii) may require the submission of such information as may be reasonable and
necessary,
(iii) may require the testimony of any person and the production of any documents
as
may be reasonable and neeessary.
Case 1:O2-W-01437-UNJ Document 46 Fi|ed 03/26/14 Page 5 of 12
§l2(d)(3)(B).) This is a very broad grant of authority, which allows the special master to obtain
any information that is reasonable and necessary This would include the authority to seek out
relevant information concerning attorneys’ fees, from "any person."
B. Vaccine Rules
The statutory language is reinforced by the Vaccine Rules,° which "govern all
proceedings" pursuant to the Vaccine Act. Vaccine Rule l(a). "In any matter not specifically
addressed by the Vaccine Rules, the special master or the court may regulate the applicable
practice, consistent with these rules and the purpose of the Vaccine Act." Vaccine Rule l(b).
With regard to taking evidence during a proceeding on a petition,
(a) General. The special master will determine the format for taking evidence and
hearing argument based on the specific circumstances of each case and after
consultation with the parties.
(b) Evidence.
(1) Rules. In receiving evidence, the special master will not be bound by
common law or statutory rules of evidence but must consider all relevant
and reliable evidence, governed by principles of fundamental fairness to
both parties.
Vaccine Rule 8. While Vaccine Rule 8 describes the special master’s obligation to
"consider all relevant and reliable evidence," Vaccine Rule 15 specifically addresses the
authority of the special master to consider information obtained from those who are not
parties to a case,
Third Parties No person may intervene in a vaccine injury compensation
proceeding, but the special master may afford all interested individuals an
opportunity to submit relevant written infonnation within 60 days after
publication of the petition in the F ederal Register, or later, with leave of the
special master.
Vaccine Rule 15. Thus, an "interested individual" may submit relevant written information at
any time, with leave of the special master.
C. Case law
An award of attorney’s fees and costs to compensate a former counsel is generally not
controversial under the Vaccine Act. Typically, in such situations, the current counsel files the
petitioner’s application for an award that includes payments for both current and former counsel,
5 The Vaccine Rules are found at Appendix B to the Rules of the United States Court of Federal Claims.
Case 1:O2-vv-O1437-UN.J Document 46 Filed 03/26/14 Page 6 of 12
Of`ten, a separate award is made payable in such cases to petitioner and former counsel, jointly.7
Sometimes, awards are made payable to the petitioner and current counsel, jointly, while
imposing an obligation on the petitioner to make appropriate distribution to petitioner’s former
counsel. In each of these cases, former counsel received an award for attorney’s fees and costs,
because someone, usually petitioner’s current counsel, filed an application on behalf of fortner
counsel for those fees and costs.
in this Turner case, however, there is no current counsel to advocate on behalf of former
counsel, and the pro se Petitioners have not participated. There have been similar cases in
which fenner counsel have tried to request fees and costs, without the assistance of petitioners or
current counsel. in Bentley v. HHS, No. 10-240V,
2011 WL 34733 80 (Fed. Cl. Spec. Mstr.
July 13, 2011), former counsel filed a motion for attorney’s fees and costs, and Respondent did
not object to an award. in Gabrielle v. HHS, No. 07-304V,
2011 WL 6001098 (Fed. Cl. Spec.
Mstr. Oct, 5_. 201 1), fortner counsel filed an unopposed motion for attorney’s fees and costs. in
Pi.~rcopr) v_ }II~."S_. No. Ul-234V,
2005 WL 61 15371 (Fed. Cl. Spec. Mstr. Nov. 8, 2005), two
former ct)tinsel made separate applications for attomeys’ fees and costs, and Respondent again
did not object. Former counsel in all of these cases were awarded appropriate compensation,
since Respondent made no objection.
In Way v. HHS, No. 05-588V,
2007 WL 5171110 (Fed. Cl. Spec. Mstr. Nov. 19, 2007),
petitioner’s counsel withdrew as counsel, and later filed an application for attomey’s fees and
costs, without the participation of the pro se petitioner. Initia1ly, Respondent filed an Opposition
to the application of the petitioner’s former counsel, but the special master eventually awarded
fees and costs for the work of the petitioner’s former counsel. (Ia'.)
in his Reply to Respondent’s objection to the motion for attorney’s fees and costs in this
case, Mr. Tankard cited Gz`tesatam` v. HHS, No. 09-799V,
2011 WL 5025006 (Fed. Cl. Spec.
Mstr. Sept 30, 2011). In Gt`tes'cttrtnf, petitioner’s counsel withdrew from the case, then later
requested an award for fees and costs, which was granted, even though the petitioner did not
participate Ial.,’ see also Turzcr v, HHS, No. 04-223V,
2012 WL 2362594 (Fed. Cl. Spec. Mstr.
Apr. 20, 201 Z){awarding fees directly to counsel), The special master in Gitesani noted that the
recent decision in Avera v. HHS, 515 F.3d 1343 (Fed.Cir. 2008), "militates against
hypertechnical construction of the statute in favor of an interpretation that promotes the
underlying purpose of the provision facilitating the award of attomeys’ fees and costs, even
where the petitioner does not prevail." Gitesanz`, at *6.
7 See, e.g., Kessler v. HHS, No. 02-051V,
2007 WL 5632592 (Fed. Cl. Spec. Mstr. Aug 2l, 2007); Gruber v. HHS,
No. 00-749V,
2010 WL 1253000 (Fed. Cl. Spec. Mstr. Ma.rch 10, 2010); Car:rriieo v. HHS, No. |0-607\/, 2012 WL
7161'15 (Fed. Cl. Spec. Mstr. .lan. 6, 2012); K!i:g v, HHS, No. 10~574,2012 WL. 52|{)5?5 (Fed. Cl. Spec. Mstr. Sept.
24, 20 |2); iltlofdrlver v. HHS, No. 09-'155, 2012 WL 53633?1 (Fed. Cl. Spec .Mstr. Sept. 26, 2012); fears v. HHS,
No. 10-044\/, 2012 W‘L. 6062699 {Fed. Cl. Spec. Mstr. Nov. 13, 20!2}; Dcrvay v. HHS, No. ll-794V. 2013 Wl.
1339169 (Fed. Cl. Spec. Mstr. Mar. S, 2013};.)‘0)'1:1.90:1\». HHS, No. l l-398V, 2012 WL 6869845 (Fed. Cl. Spec,
Mstr. Dec. 20, 2012).
s See, e.g., Zatuchni v. HHS, No. 94-O58V, 2008 Wl_, 2462717 (Fed. Cl. Spec. Mstr. May 23, 2008); Nelson v. HHS,
No. 99-575V,
2012 WL 2874373 (Fed. Cl. Spec. Mstr. June 11, 2012; Hegarty v. HHS, No. 0l-463V,
2012 WL
3893765 (Fed. Cl. Spec. Mstr. Aug. 3, 2012); Burrell~Smilh v. HHS, No. ll-316V,
2012 WL 4712010
(Fed.Cl.Spec.Mstr. Sept. 5, 2012).
6
Case 1:02-vv-01437-UNJ Document 46 Fi|ed 03/26/14 Page 7 of 12
Another case that resembles the situation in this case is Pettitt v. HHS, No. lO-038V,
2012 WL 300539l (Fed. Cl. Spec. Mstr. May ll, 2012), wherein petitioners’ counsel also
withdrew, but later filed a request for fees and costs. The special master granted payment of
fenner c0unsel’s fees and costs.
III
RESPONDENT’S ARGUMENT
As noted above, Respondent filed a Response to Mr. Tankard’s motion for attorney’s fees
and costs. (ECF No. 43.) In that filing, Respondent contends that "Mr. Tankard is not the
attomey of record in this case, nor have Petitioners filed for attorney’s fees and costs on his
behalf. As such, Mr. Tankard does not have standing to file his Motion." (Id. at 2.) This
contention is based on Vaccine Rule l4(b)(3), which requires that "[a]ll filings must be signed in
the attorney of record’s name."
Respondent specifically acknowledged that Respondent does not object to the amount of
fees and costs requested by Mr. Tankard. (]d., at fn. 2.) However, despite this concession, if
Respondent’s argument against former counsel’s "standing" to file a motion prevails, then
fonner counsel will not be compensated for work he has performed on this case
IV
DISCUSSION
A. Introduction
Respondent contends that Vaccine Rule l4(b)(3) does not allow any person who is not
attorney of record to fife a rnotion into the record of a Vaccine Act case. (Response, ECF No.
43.) According to Respondent’s argument, Mr. Tankard does not have "standing" to file
anything into the record, since he has withdrawn as counsel and is now a non-party in this case.
Respondent is correct in observing, and Mr. Tankard has acknowledged, that at the time
he filed his motion, he was not the counsel of record. Respondent is also correct that the
Petitioners have not filed for attorney’s fees on his behalf lt is ciear tiiat since becoming pro se
advocates for their petition, the Petitioners have not participated in the proceeding
B. Persons other than the current counsel of record may file information into the record.
The language that Respondent cites from §l4(b)(3) of the Vaccine Rules must be read
within the context of Rule 14 as a whole, which pertains to the role of attorneys who practice
before the Office of Special Masters. Both Vaccine Rule 14, which describes the role of
"attomeys" in general, and subsection l4(b)(3), which is titled "Signing Filings," contain
instructions that apply only to the attomey of record in a particular case. Respondent would
apply subsection l4(b)(3) to every type of filing that is made in a Vaccine Act case. However, it
7
Case 1:02-vv-0l437-UNJ Document 46 Filed 03/26/14 Page 8 of 12
is notable that at least three Vaccine Rules (i.e., Rules 8, l5, and 17) discuss filings by
individuals who may not be the attomey of record.
Vaccine Rule 8(a) provides general guidance concerning "Taking Evidence,"
emphasizing that the "special master will detennine the format for taking evidence." This is a
very broad grant of authority, allowing the special master complete flexibility to gather evidence,
without any caveats as to what kind of entities may provide such evidence. Furtherrnore, "[i]n
receiving evidence, the special master will not be bound by common law or statutory rules of
evidence but must consider all relevant and reliable evidence." Vaccine Rule S(b)(l). This
subsection amplifies that authority by removing the typical restrictions imposed by both common
law and statutory law. In granting that authority, subsection S(b)(l) imposes the strong
requirement that the special master, "must consider all relevant and reliable evidence."
(Emphasis added.) Nothing in this subsection suggests that only evidence filed by counsel of
record will be considered. To the contrary, such a restriction is explicitly rejected. This
statutory language indicates that, once a special master has determined that an item of evidence
is relevant and reliable, the special master is required to consider such evidence, whether or not
it was filed by counsel of record.
Vaccine Rule l5 describes written information submitted by "third parties" with leave by
the special master, while Vaccine Rule l'?(b)(l) describes other documents filed "by order of the
special rnaster." Both of these Rules are consistent with the language set forth in the statute at
§]Zfd)(iii); that is, “in conducting a proceeding on a petition, a special master may. .. require the
testi:nony of any person and the production of any documents as may be reasonable and
nccessary." §l2(d)(iii)(eniphasis addecl). Vaccine Rules 15 and l'?, in combination with the
statutory language of § l 2(cl), impose an affirmative obligation on the special master to consider
relevant information from any persoti_. not just from counsel of record or a pro se petitioner.
The use of the phrase "any person," emphasized above, clearly contemplates individuals
who are not the attomey of record as defined by Vaccine Rule 14. Nez'ther Vaccine Rule l5,
concerning "Third Parties," nor Vaccine Rule l?(b), concerning "Filing Documents," includes
the language of Vaccine Rule l4(b)(3), which requires all filings by an attorney to be signed by
the attomey of record. Clearly, the language Respondent cited from Vaccine Rule l¢l(b)($)
pertains only to attorneys acting pursuant to Vaccine Rule 14, and merely indicates that such
documents must be signed by the attomey of record (rather than, for example, the attorney of
record’s associate).
In this case, pursuant to Vaccine Rule l5, I determined that a third party, former counsel
of record George Tankard, was an "interested individual" who possessed information relevant to
the issue of attorney’s fees and costs in this case. A member of my staff directed him to file that
information. I hereby affirm that the instruction given by a member of my staff properly
reflected my intention, pursuant to Vaccine Rule 8(b)(l), to allow Mr. Tankard to file "relevant
and reliable eviclence" concerning attomey’s fees and costs. Guided by Vaccine Rule l7(b)(l),
Mr. Tankard then submitted the relevant infonnation, in a document styled as a "Motion" for
attomey’s fees and costs. ln subsequent Orders, with proper notice to Petitioners, l gave Mr.
Tankard leave to further elaborate on that information at a status conference, and to file a Reply
to respondent’s objections to his claim. In short, Mr. Tankard had the appropriate standing to
Case l:02-vv-Ol437-UNJ Document 46 Fi|ed 03/26/14 Page 9 of 12
file his Motion, and his subsequent Reply to Respondent’s Response, because he had been
instructed to do so by myself, the presiding special master, pursuant to Vaccine Rule l7(b)(l).
Therefore, Respondent’s objection to Mr. Tankard’s standing is overruled.
C. Awarding attorney ’s fees in "unsuccessfuI" cases, under the Vaccine Act
In Sebelius v. Cloer,
133 S. Ct. 1886,
2013 WL 2149791 (2013), the U.S. Supreme Court
addressed the possibility of awarding attomey’s fees 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--
meaning delivered to and received by -- the clerk of the Court of Federal Claims is eligible for an
award of attomey’s fees." (Ia’. at l895.) The Supreme Court further opined that the Vaccine Act
provides for an award of attorney’s 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-l S(e)(l),
irrespective of the reasons for the petition’s failure." (ld. at 1896, emphasis in original.) In citing
this language from the Vaccine Act, the Supreme Court placed emphasis on the word "any,"
which is used to describe the type of proceeding that would qualify for an award of attorney’s
fees and costs; that is, "any proceeding on a petition" would qualify. Further, the Court included
the clarification that attorney’s fees and costs may be compensable for work performed on an
unsuccessful petition, "irrespective of the reasons for the petition’s failure." (Ial.)
In this case, the petition was unsuccessful, due to Petitioners’ failure to prosecute or
prove the case. However, according to Sebelius v. Cloer, the reasons why this petition ultimately
failed are not dispositive when considering an award of attorney’s fees and costs. Further, in this
case, the attorney in question acted reasonably during his tenure as counsel, and the dismissal
came later, after the Petitioners’ first chose to continue their suit without counsel, but later
apparently chose to abandon their claim.
Petitioners were informed of the status conference at which Mr. Tankard’s motion would
be discussed, and they were invited to participate. While respondent’s counsel and Petitioners’
former counsel participated in that conference, the Petitioners did not participate Petitioners’
failure to participate cannot be used to justify a refusal to compensate their former counsel for
fees eamed while working on their petition. A special master has the discretion to consider
relevant information provided by a third party under these circumstances. Vaccine Rule 8(c), as
noted, mandates that the "special master will consider all relevant reliable evidence, governed by
the principles of fundamental fairness to all parties." (Emphasis added.)
D. Congress intended that attorneys receive payment in unsuccessful cases.
Attomeys 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 attomey would face the possibility that he or she might not
be compensated for work reasonably perfonned, if an unsuccessful petitioner declines to
Case 1:O2-vv-O1437-UNJ Document 46 Fi|ed 03/26/14 Page 10 of 12
cooperate with the court. Discouraging potential attomeys in this way would contradict the
stated intentions of the drafters of the Vaccine Act. "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 l343, l352 (Fed. Cir. 2008) (citation
omitted). One stated purpose of the scheme for awarding attomey’s 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, at 1895, citing
H. R. Rept. No. 99-908, pt. l, 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 attomeys’ time and
that the court exercise[s] its discretion to award fees in non-prevailing, good-faith claims." H.R.
Rept. at 22.; see also Sebelius v. Cloer, at l895. Special masters are thereby instructed to
exercise their discretion conceming fees and awards so as to compensate the attomeys 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 sum, both the legislators who drafted the attomeys’ fees provisions of the Vaccine Act,
and the Supreme Court, which has twice interpreted those provisions, support appropriate
compensation for counsel’s efforts, in order to encourage the ongoing availability of qualified
counsel. The language of the Vaccine Act clearly imposes a duty on special inasters, and grants
them broad authority, to seek whatever evidence may be relevant to requests for payment of
attorneys’ fees and costs. Appropriate compensation to petitioners’ counsel is due for the
reasonable work that they perfonn on Vaccine Act cases, pursuant to § 300aa-l S(e)(l), even
when the petitioners do not participate in the award process.
E. Summary
ln sum, for the reasons stated above, Respondent’s objection to Mr. Tankard’s
"standing" to seek fees in this case is hereby overruled.
V
PAYMENT OF FEES AND COSTS DIRECTLY TO COUNSEL
At page 2_. paragraph 12 of his motion for fees and costs, Mr. Tankard explicitly
requested that the check for fees and costs be made payable to counsel himself And while
Respondent’s Response to that motion explicitly raised the "standing" issue discussed above,
Respondent did not object to tire request for payment directly to counsel.g
9 Accordingly, pursuant to Vaccine Rule S(f)(l), on any review of this Decision, Respondent would be precluded
from objecting to the method of payment in this case.
10
Case 1:02-vv-01437-UN.J Document 46 Fi|ed 03/26/14 Page 11 of 12
Further, in this case where the pro se Petitioners have not responded to numerous
outreach efforts by both their attorney and this court, it is highly unlikely that an award of
attomeys’ fees made payable to jointly to Petitioners and their former counsel, as is often done in
Vaccine Act cases, would ever reach counsel.
In similar circumstances in recent Vaccine Act cases, in which the petitioners themselves
cannot be located or are uncooperative, special masters have used their discretion to specify that
a fees and costs award be made directly to an attorney. See Tutza v. HHS, No. 04-223\/,
2012
WL 2362594 (Fed. Cl. Spec. Mstr. Apr. 20, 201]2(?; Gitesatani v. HHS, No. 09-799V,
2011 WL
50250061 (Fed. Cl. Spec. Mstr. Sept. 30, 2011).
Therefore, in this case, 1 direct that the check for attomeys’ fees and costs be made
payable directly to the attorney in question.
V
CONCLUSION
1 find that this petition was brought in good faith, and that there existed a reasonable basis
for the claim. 'l`herefore, an award for fees and costs is appropriate, pursuant to 42 U.S.C. §
300aa-l 5(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate.
Accordingly, I hereby award the total of $6,401.70 as a lump sum, in the form of a check
payable to Petitioners’ former counsel, George G. Tankard, III. The check shall be sent to:
George G. Tankard, III
Law Offices of George G. Tankard, III
581 1 Laurel Leaves Lane
Clarksville, MD 21029
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.' '
'° See also Ortiz-Mutilitis v. HHS, No. 03-59V,
2012 WL 3902472, at fn. 9 (Fed. Cl. Spec. Mstr. Aug. 14, 2012),
where the special master noted that--
as discussed in Tutza
2012 WL 2362594, I maintain that under certain narrow circumstances, a
special master may award attomey fees and costs directly to counsel, who is the real party in
interest in all fees application.
" The Clerk of this Court is also directed to send a courtesy copy of this Decision to Mr. Tankard, at the above
address.
11
Case 1:O2-vv-01437-UNJ Document 46 Fi|ed 03/26/14 Page 12 of 12
` George L. Hastings, .lr.w
Special Master
IT IS SO ORDERED.
