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Simmons v. Secretary of Health and Human Services

United States Court of Appeals, Federal Circuit

November 7, 2017

HENRY SIMMONS, Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:13-vv-00825-NBF, Senior Judge Nancy B. Firestone.

          Joseph Pepper, Conway Homer, PC, Boston, MA, argued for petitioner-appellant. Also represented by Ronald C. Homer.

          Voris Edward Johnson, Jr., Vaccine/Torts Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Chad A. Readler, C. Salvatore D'Alessio, Catharine E. Reeves.

          Jennifer Anne Maglio, Maglio Christopher & Toale PA Law Firm, Sarasota, FL, for amici curiae Vaccine Injured Petitioners Bar Association, The George Washington University Law School Vaccine Injury Litigation Clinic.

          Before Prost, Chief Judge, Lourie and Taranto, Circuit Judges.

          PROST, CHIEF JUDGE.

         Appellant Henry Simmons appeals the decision of the Court of Federal Claims ("Claims Court"), Simmons v. Sec'y of HHS, 128 Fed.Cl. 579 (2016) ("Claims Court Decision"), denying attorneys' fees and costs for his vaccine case. Because the Claims Court properly concluded that there was no reasonable basis for Mr. Simmons's claim, we affirm.

         I

         Mr. Simmons first contacted counsel in August 2011, claiming that he developed Guillain-Barre Syndrome ("GBS") as a result of his October 26, 2010 flu vaccination. He provided his vaccination record to counsel and counsel agreed to represent him. After the August conversation, counsel was unable to contact Mr. Simmons despite making several attempts. In light of Mr. Simmons's failure to respond, counsel sent Mr. Simmons a letter in March 2013 notifying him that their attorney-client relationship had been terminated. The termination letter was returned as undeliverable.

         Then, on October 17, 2013, nearly two years after his previous communication and shortly before the three-year statute of limitations on his Vaccine Act claim might have expired, Mr. Simmons contacted counsel's firm and expressed that he would like to move forward with his petition. Counsel spoke with Mr. Simmons one additional time on October 21, 2013. The next day, on October 22, 2013, counsel filed Mr. Simmons's petition for compensation. The petition did not include any medical records or other supporting evidence showing that Mr. Simmons had been diagnosed with GBS. In January 2014, the special master ordered counsel to produce Mr. Simmons's medical records. Counsel informed the special master that counsel had once again lost all contact with Mr. Simmons and that despite making numerous attempts, they were unable to acquire his medical records. The special master dismissed the case for failure to prosecute.

         After the special master dismissed Mr. Simmons's petition, counsel filed two fee petitions seeking a total of $8, 267.89 in fees and costs. The special master found that Mr. Simmons's petition had been filed in good faith and there was a reasonable basis for the claim. In particular, the special master noted that because there was no direct evidence of bad faith, counsel had satisfied the good faith requirement. Further, the special master found that counsel had satisfied the reasonable basis requirement because Mr. Simmons "provided Counsel with a vaccination receipt"; "after consulting with Petitioner, Counsel judged the claim potentially meritorious"; and "[w]hile that alone may not have provided a reasonable basis for filing a claim, Petitioner then disappeared for almost two years and reemerged less than ten days before the statute of limitations expired" at which point "[t]o not file a petition . . . would be tantamount to an ethical violation." Simmons v. Sec'y of HHS, 2016 WL 2621070, at *3 (Fed. Cl. Apr. 14, 2016) ("Special Master's Decision"). On this basis, the special master awarded the attorneys' fees. Id.

         The government appealed the special master's decision to the Claims Court. On review, the court reversed the special master's decision, concluding that the special master erred in finding that counsel had a reasonable basis for Mr. Simmons's claim. Claims Court Decision, 128 Fed.Cl. at 583. In particular, the Claims Court noted that "[c]ounsel failed to produce any evidence, either at the time the petition was filed or in the five months before the special master dismissed the case for failure to prosecute, to support the claim that petitioner suffered from GBS caused by his flu vaccine." Id. Further, the Claims Court held that "[t]he fact that the statute of limitations was about to expire did not excuse counsel's obligation to show he had some basis for the claim beyond his conversation with the petitioner." Id. at 584.

         On appeal to this court, Mr. Simmons's counsel argues that the special master did not abuse her discretion in awarding attorneys' fees and that we should affirm her award. The government, on the other hand, argues that the special master's rationale improperly conflated the subjective good faith analysis with the objective reasonable-basis inquiry. We have jurisdiction under 42 U.S.C. § 300aa-12(f). Because we agree with the ...


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