In the United States Court of Federal Claims

No. 03-2286V

Filed: November 26, 2013

Not to be Published

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KIMBERLEY SCHANK, *

as the mother and natural guardian, *

DALLAS SCHANK, a minor, *

*

Petitioner, * Autism; Attorneys’ Fees and Costs

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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DECISION AWARDING ATTORNEYS’ FEES AND COSTS1

On September 12, 2012, petitioner filed a motion for attorneys’ fees and costs in 

this case. Respondent opposed the motion, arguing that fees and costs should not be 

awarded in untimely filed cases. Because this issue was pending before the U.S. 

Supreme Court, the special masters deferred ruling on fee applications in approximately 

1,000 Omnibus Autism Proceedings (“OAP”) cases. Thus, a ruling on petitioner’s 

motions in this case was deferred. 

Following the Supreme Court’s decision,2respondent’s counsel and petitioners’ 

counsel from the five law firms with the greatest number of pending motions discussed 

a procedure to avoid the lengthy litigation required to assess whether each case was 

 

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 Because this unpublished decision contains a reasoned explanation for the action in this 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 The Supreme Court 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).
2

filed in good faith and with a reasonable basis. Respondent will withdraw her objection 

to the payment of attorneys’ fees and costs in cases which were filed when the minor 

child was 78 months of age or younger with two caveats.3 Petitioners’ counsel will 

withdraw all motions for fees and costs in cases which were filed when the minor child 

was older than 78 months of age or which fall under either caveat. The procedure 

applies only to cases in the OAP and should not be construed as evidence that the 

parties are abandoning any legal arguments they may make in other cases. 

Petitioner’s counsel in this case has decided to follow this procedure. Because 

the case was filed when the minor child was 78 months of age or younger and does not 

fall under either of respondent’s caveats, respondent has withdrawn her objection to 

payment of attorneys’ fees and costs. Additionally, respondent does not oppose the 

amount of fees and costs requested.

Petitioner seeks attorneys’ fees and costs in the amount of $5,218.71. In lieu of 

filing a Vaccine General Order #9 statement, petitioner’s counsel represents that he will 

reimburse petitioner any costs that petitioner personally incurred that are compensable 

under § 15 (e)(1). 

Pursuant to §15(e), I hereby award a lump sum of $5,218.714to be paid in 

the form of a check payable jointly to the petitioner and petitioner’s counsel, 

Douglas & London, P.C.

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.5

IT IS SO ORDERED.

s/George L. Hastings, Jr.

George L. Hastings, Jr.

Special Master

 

3 The first caveat is that respondent will continue to object in any case where the filed medical 

records show that there was a diagnosis outside the statute of limitations. The second caveat 

applies to those cases, in which the claim lacked a reasonable basis for reasons unrelated to 

timely filing. For example, if the minor vaccinee received only a hepatitis B vaccine at birth and 

no additional vaccines were administered, respondent may continue to object because the 

period between vaccination and onset of symptoms at 15 months of age is unreasonable.

4 This amount is intended to cover all legal expenses incurred in this matter. 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

 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to 

seek review. See Vaccine Rule 11(a).