In the United States Court of Federal Claims

No. 03-2755V

Filed: January 7, 2014

Not to be Published

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

VALE KRENIK, Parent of *

V.K., a Minor, *

*

Petitioner, * Autism; Interim Attorneys’ Fees and

* Costs

v. *

*

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

*

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

DECISION AWARDING INTERIM ATTORNEYS’ FEES AND COSTS1

On December 21, 2012, petitioner filed a motion for attorneys’ fees and costs

incurred by petitioner’s former2counsel. Respondent opposed the motion, arguing that 

the fees and costs should not be awarded due to their interim nature and respondent’s 

belief that the case was untimely filed. See Second Response, filed Jan. 9, 2013. 

Because the issue of whether attorneys’ fees and costs could be awarded in untimely 

filed cases 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. I deferred ruling on petitioner’s motions in this case. See First Order, issued 

May 1, 2013. 

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, 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 Petitioner’s motion included a request from counsel to withdraw as attorney of record which I 

granted. See Second Order, issued May 1, 2013. 
2

Following the Supreme Court’s decision,3respondent’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 

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.4 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. 

Because petitioner continues to pursue his claim as a pro se petitioner, any 

award of fees and costs would be interim in nature. Thus, this basis for respondent’s 

opposition still exists. 

It is clear that interim fees and costs can be awarded under the Vaccine Act. 

See Shaw v. Sec’y, HHS, 609 F.3d 1372 (Fed. Cir. 2010); Avera v. Sec’y, HHS, 515 

F.3d 1343 (Fed. Cir. 2008). Although I recognize that the withdrawal of counsel alone 

may not always provide sufficient justification for an award of interim fees and costs,

5

I 

find that the facts in this case warrant such an award. Following my reasoning in other 

cases, I determine that the requisite good faith and reasonable basis exist. See, e.g., 

Lumsden v. Sec’y, HHS, No. 97-588, 2012 WL 1450520, at *2 (Fed. Cl. Spec. Mstr. 

Mar. 28, 2012). Similarly, this case has been pending for more than ten years and will 

continue for at least several more months. Id., at *2-4. Under these circumstances, 

petitioners have established a sufficient basis to warrant the award of fees and costs on 

an interim basis.

Petitioner seeks attorneys’ fees and costs in the amount of $3,730.00 for work 

performed by Conway, Homer & Chin-Caplan, P.C. and $200.00 for work performed by 

 

3 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).

4 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.

5 See McKellar v. Sec’y, HHS, 101 Fed. Cl. 297, 301 (2011).
3

Williams Kherkher for a total of $3,930.00. In lieu of filing a Vaccine General Order #9 

statement, petitioner’s former 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 $3,930.006to be paid in 

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

counsel, Conway, Homer & Chin-Caplan, P.C. The check shall be mailed to 

petitioner’s former counsel at the following address: Conway, Homer & ChinCaplan, P.C., 16 Shawmut Street, Boston, MA 02116.

The Clerk shall mail a copy of this decision to petitioner at her address of 

record and another copy to petitioner’s former counsel at the address where the 

check is to be mailed.

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.7

IT IS SO ORDERED.

_____________________

Denise K. Vowell

Chief Special Master

 

6 This amount is intended to cover all legal expenses incurred by petitioner’s former counsel, 

Conway, Homer & Chin-Caplan, P.C. and Williams Kherkher 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).

7 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).