from the United States Court of Federal Claims in No.
1:13-vv-00825-NBF, Senior Judge Nancy B. Firestone.
Pepper, Conway Homer, PC, Boston, MA, argued for
petitioner-appellant. Also represented by Ronald C. Homer.
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.
Prost, Chief Judge, Lourie and Taranto, Circuit Judges.
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.
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.
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.
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.
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
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 ...