# In the United States Court of Federal Claims

No. 0 3

- 2286 V

Filed: November 26

, 2013

Not to be Published

* * * * * * * * * * * * * * * * * * * * * * * * * * * * KIMBERLEY SCHANK, *

as the mother a nd natural guardian

, * DALLAS SCHANK, a m inor, *

*
Petitioner, * Autism; Attorneys’ Fees and Costs

v. *

*

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

DECISION AWARDING ATTORNEY S’ FEES AND COSTS 1

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

th is 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 ”) ca ses . Thus, a ruling on petitioner ’ s
motion s in this case was deferred.

Following the Supreme Court’s decision, 2 respondent’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1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, in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 p ublic 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. R espondent 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 P etitioners’ counsel will

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

w as 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.

P etitioner ’ s counsel in this case has decided to follow this procedure . B ecause
the case was filed when the minor child was 78 months of age or younger and does not

fa ll 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 r equested.

Petitioner seek s attorneys’ fees and costs in the amount of $ 5, 2 1 8

. 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, 2 1 8 .71 4 to be paid in the form of a check payable jointly t o 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 C lerk of the court shall enter judgment in accordance herewith. 5

IT IS SO ORDERED.

s/ George L. Hastings, Jr. George L. Hastings, Jr.

S p ecial 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 sy mptoms 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).