NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

R.K., L.K., ON BEHALF OF, A.K., A MINOR,

Petitioners-Appellants

v.

SECRETARY OF HEALTH AND HUMAN 

SERVICES,

Respondent-Appellee

______________________

2018-1738

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:03-vv-00632-SGB, Senior Judge Susan G. Braden.

______________________

Decided: March 15, 2019

______________________

JOHN FRANCIS MCHUGH, Law Office of John McHugh, 

New York, NY, argued for petitioners-appellants. 

 HEATHER LYNN PEARLMAN, Vaccine/Torts Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by JOSEPH H. HUNT, C. SALVATORE D'ALESSIO, GABRIELLE 

M. FIELDING, CATHARINE E. REEVES. 

 ______________________
2 R.K. v. HHS

Before PROST, Chief Judge, LOURIE and STOLL, Circuit 

Judges.

STOLL, Circuit Judge.

BACKGROUND

In 2003, Robert and Lori Krakow filed a petition on behalf of their son, A.K., for compensation under the National 

Childhood Vaccine Injury Act. They alleged that two pediatric doses of influenza vaccine caused A.K.’s severe developmental issues (diagnosed as autism spectrum disorder). 

Special Master Vowell held an entitlement hearing on 

April 30, 2013, and issued a decision denying entitlement 

on September 28, 2015. In an exhaustive opinion, Special 

Master Vowell discussed a multitude of factual issues and 

concluded that causation was not established by preponderant evidence. The Court of Federal Claims denied the 

Krakows’ motion for review on December 18, 2015. The 

Krakows then appealed to this court, arguing (1) that the

arbitrary and capricious standard used by this court to review factual findings in Vaccine Act cases is unconstitutional, and (2) that they had demonstrated causation under 

any standard of review. On December 9, 2016, we affirmed 

the judgment of the Court of Federal Claims under Federal 

Circuit Rule 36. R.K. v. Sec’y of Health & Human Servs., 

671 F. App’x 792 (Fed. Cir. 2016). 

While the case was proceeding, the Krakows were 

awarded interim attorneys’ fees and costs totaling 

$459,108.12. This amount covered work performed 

through the April 30, 2013 entitlement hearing. On 

May 15, 2017, the Krakows filed a motion for final attorneys’ fees and costs, requesting an additional $683,926.13 

for work performed between the conclusion of the entitlement hearing and the filing of the fee motion. The request 

included fees and costs associated with post-hearing motions, the motion for review before the Court of Federal 

Claims, the appeal to this court, and the fee request motion. 
R.K. v. HHS 3

On August 31, 2017, a second special master issued his

decision awarding $225,702.10 in fees and costs. R.K. v. 

Sec’y of Health & Human Servs., No. 03-vv-632 (Fed. Cl. 

Spec. Mstr. Aug. 31, 2017) (“Fee Decision”). The special 

master found that the Krakows’ appeal of the entitlement 

decision to this court lacked a reasonable basis and thus 

declined to award any fees and costs associated with that 

appeal.1 Id. at 9. Specifically, he determined that the Krakows’ constitutional challenge to this court’s arbitrary and 

capricious standard of review had no reasonable basis. Id.

at 8. He also determined that the Krakows’ challenge to 

Special Master Vowell’s factual findings, under any standard of review, was highly unlikely to be successful. Id. at 9. 

The Court of Federal Claims denied the Krakows’ motion 

to review the special master’s decision. R.K. v. Sec’y of 

Health & Human Servs., No. 03-vv-632 (Fed. Cl. Jan. 26, 

2018) (“Review Decision”). The Krakows then appealed to 

this court, arguing that their constitutional and factual 

challenges in the entitlement appeal had a reasonable basis. We have jurisdiction under 28 U.S.C. § 1295(a)(3) and 

42 U.S.C. § 300aa-12(f).

DISCUSSION

“Under the Vaccine Act, this court reviews a decision of 

the special master under the same standard as the Court 

of Federal Claims and determines if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.’” Rodriguez v. Sec’y of Health & Human Servs., 

632 F.3d 1381, 1383–84 (Fed. Cir. 2011) (quoting Avera v. 

Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 

(Fed. Cir. 2008)). We review a special master’s fact findings under the arbitrary and capricious standard. Milik v. 

Sec’y of Health & Human Servs., 822 F.3d 1367, 1378–79

(Fed. Cir. 2016). “We review discretionary rulings under 

 

1 The special master also reduced the fee award for 

other reasons not at issue in this appeal. 
4 R.K. v. HHS

the abuse of discretion standard.” Masias v. Sec’y of Health 

& Human Servs., 634 F.3d 1283, 1288 (Fed. Cir. 2011).

We agree with the Court of Federal Claims that the 

special master did not abuse his discretion in declining to 

award fees and costs associated with the Krakows’ appeal

of the entitlement decision to this court. See Review Decision at 10–11. A claim can lose its reasonable basis as the 

case progresses. See Perreira v. Sec’y of Dep’t of Health & 

Human Servs., 33 F.3d 1375, 1376–77 (Fed. Cir. 1994)

(holding that an award of fees and costs was not authorized 

for work performed on a case after a claim lost its reasonable basis). Under the particular circumstances in this case, 

we cannot say that the special master erred in determining 

that a reasonable basis failed to exist after the Court of 

Federal Claims issued an opinion finding no error with the 

special master’s factual findings and weighing of the evidence. 

It was reasonable for the special master to determine 

that the Krakows’ challenge to Special Master Vowell’s factual findings lacked a reasonable basis in light of this 

court’s highly deferential standard of review and Special 

Master Vowell’s exhaustive 219-page opinion assessing 

and weighing the evidence. It was also reasonable for the

special master to determine that the Krakows’ constitutional challenge of this court’s arbitrary and capricious 

standard of review had no reasonable basis. This court’s 

Milik decision addresses this very argument and issued 

seven days prior to the filing of the opening brief in the entitlement appeal. See Brief for Petitioners-Appellants, 

R.K. v. Sec’y of Health & Human Servs., 2016 WL 3090232 

(Fed. Cir. May 27, 2016). In Milik, this court confirmed 

that the arbitrary and capricious standard—which this 

court had applied for 25 years—was the correct standard 

to apply when reviewing factual findings in Vaccine Act 

cases. 822 F.3d at 1378–79. It is undisputed that the Krakows were aware of the Milik holding and nonetheless continued to raise their constitutional challenge on appeal. 
R.K. v. HHS 5

While we conclude that the special master did not 

abuse his discretion here, we disagree with the special 

master’s statement that a Rule 36 affirmance by this court 

constitutes “some evidence that petitioner’s appeal lacked 

a reasonable basis in the first instance.” Fee Decision at 8. 

A Rule 36 affirmance does not speak at all to whether a 

claim had a reasonable basis. It “simply confirms that the 

trial court entered the correct judgment.” Rates Tech., Inc. 

v. Mediatrix Telecom, Inc., 688 F.3d 742, 750 (Fed. Cir. 

2012). It was thus inappropriate for the special master to 

factor in this court’s Rule 36 judgment when deciding 

whether the entitlement appeal had a reasonable basis. 

Because the special master acknowledged that this factor 

was not dispositive, however, we deem this error harmless.

We do not hold that all appeals to this court challenging a special master’s factual findings lack a reasonable basis. We conclude only that, in this particular case, the 

special master did not abuse his discretion in declining to 

award fees and costs associated with the entitlement appeal to this court. 

CONCLUSION

We affirm the judgment of the Court of Federal Claims.

AFFIRMED

COSTS

No costs.