In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

GEORGE DOMINGUEZ, *

* No. 12-378V

Petitioner, * Special Master Christian J. Moran

*

v. *

* Issued: June 24, 2019

SECRETARY OF HEALTH *

AND HUMAN SERVICES, * Attorneys’ fees & costs, 

* reasonable basis, unqualified expert.

Respondent. *

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

Clifford Shoemaker, Shoemaker, Gentry & Knickelbein, Vienna, VA for 

petitioner; 

Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for 

respondent.

PUBLISHED DECISION GRANTING ATTORNEYS’ FEES AND COSTS1

On October 29, 2018, petitioner moved for final fees and costs, requesting 

$38,568.90. Because Mr. Dominguez previously moved for, and was granted,

interim fees and costs, the period covered by the present motion includes only the 

period from August 1, 2017 onward. The Secretary objects to Mr. Dominguez’s 

motion on the ground that Mr. Dominguez is not entitled to an award because his 

petition does not, and never had, a reasonable basis. Resp’t’s Resp., filed Dec. 12, 

2018, at 8. Although there were serious issues with Mr. Dominguez’s petition and 

 

1 Because this decision contains a reasoned explanation for the action in this case, the 

undersigned is required to post it on the United States Court of Federal Claims' website in 

accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal 

Management and Promotion of Electronic Government Services). This means the decision will 

be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the 

parties have 14 days to identify and move to redact medical or other information, the disclosure 

of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned 

agrees that the identified material fits within this definition, the undersigned will redact such 

material before posting the decision.
2

the evidence he submitted, on balance Mr. Dominguez’s petition did not lose its 

reasonable basis during the proceeding. However, Mr. Dominguez’s request 

includes several unreasonable items. Accordingly, Mr. Dominguez is entitled to 

reimbursement of $27,311.00 for his reasonable fees and costs.

Factual and Procedural History

The factual and procedural history of this case is relatively complex. Parts 

of the history are adopted, without attribution, from the March 6, 2017 decision 

granting interim fees.

On August 31, 2011, Mr. Dominguez saw his family doctor because of 

diarrhea, nausea, and lightheadedness that lasted one day. At that visit, Mr. 

Dominguez received a dose of the tetanus-diphtheria-acellular pertussis (TDaP)

vaccine. Exhibit 1 at 43-44. 

On October 19, 2011, Mr. Dominguez visited a local emergency room due to 

pain in his testicles that began earlier that day and was admitted to the hospital. 

After remaining in the hospital several days for testing, a rheumatologist diagnosed 

Mr. Dominguez as suffering from a vasculitis, probably Wegener’s 

granulomatosis. Id. at 177-79. 

Mr. Dominguez’s first attorney, Ms. Anne Toale, filed a petition on behalf 

of Mr. Dominguez on June 14, 2012, asserting that the TDaP vaccination caused 

his subsequent vasculitis. The Secretary requested additional records. See

Resp’t’s Status Rep., filed Aug. 30, 2012. Ms. Toale filed an additional set of 

records from Kaiser Permanente as exhibit 3 on January 25, 2013, and a statement 

of completion on March 14, 2013. 

The Secretary did not challenge that Mr. Dominguez suffers from Wegener’s 

granulomatosis, but recommended that compensation be denied because Mr. 

Dominguez had not provided evidence that TDaP could or did cause his injury. 

Resp’t’s Rep., filed May 10, 2013, at 12. The Secretary also asserted that Mr. 

Dominguez’s Wegener’s granulomatosis did not meet the Vaccine Act’s severity 

requirement since his treatment appeared to end less than six months after the 

disease began. Id. at 13. 

A status conference was held on May 28, 2013, in which Mr. Dominguez 

was ordered to file additional medical records. Order, issued May 29, 2013. 
3

Because the parties expressed some interest in attempting to resolve the case

informally, Mr. Dominguez was ordered to file an affidavit providing information 

regarding his potential damages. Id. 

Mr. Dominguez filed the damages affidavit on August 5, 2013, and 

additional medical records on September 3, 2013. However, over the course of the 

next six months, Ms. Toale reported that she was having difficulty tabulating

damages for communicating a demand to the Secretary. See Pet’r’s Status Rep., 

filed Jan. 20, 2014; Pet’r’s Status Rep., filed Mar. 31, 2014. 

On April 25, 2014, Ms. Toale filed a status report stating she had still not 

communicated a demand. Without providing any additional explanation, Ms. 

Toale also communicated her intention to file a motion to withdraw as Mr. 

Dominguez’s counsel after moving for interim attorneys’ fees and costs. Pet’r’s 

Status Rep., filed Apr. 25, 2014. 

On June 10, 2014, Ms. Toale submitted her motion for interim fees and costs 

incurred through that date. Mr. Dominguez requested $27,681.00 in attorneys’ 

fees and $3,808.99 in attorneys’ costs. 

The Secretary filed a thorough response to Mr. Dominguez’s motion on July 

9, 2014. In his response, the Secretary challenged the reasonable basis for Mr. 

Dominguez’s petition. The Secretary noted that the only apparent research that 

counsel performed on the question of causation was an hour of “vasculitis 

literature review” performed the same day that Mr. Dominguez first contacted his 

counsel, November 10, 2011. Resp’t’s Resp. at 3. Between that date and June 6, 

2014, the last billing entry submitted in the interim fees motion, the Secretary

observed that Mr. Dominguez’s counsel did not document any time for: “1) 

medical research by [counsel] regarding petitioner’s potential vaccine injury claim; 

2) efforts by [counsel] to retain an expert to review petitioner’s potential vaccine 

injury claim; 3) discussion by [counsel] with a medical expert about petitioner’s 

potential vaccine injury claim; or 4) efforts or discussion by [counsel] to 

communicate with petitioner’s treating physician about petitioner’s potential 

vaccine injury claim. Id. (citing Exhibit A to Pet’r’s Mot., at 1-18). Based on the 

lack of evidence supporting causation in the record and Mr. Dominguez’s 

counsel’s minimum efforts to support causation with medical records or medical 

opinion, the Secretary argued that finding that reasonable basis exists would be 
4

“premature” since “it is unclear whether petitioner here may be able to establish a 

reasonable basis for her claim.” Id. at 34.

Mr. Dominguez filed a reply brief on July 16, 2014. In his reply, Mr. 

Dominguez argued that his attorney identified “numerous” articles supportive of 

causation before filing the petition. Reply, filed July 16, 2014, at 6. Furthermore, 

Mr. Dominguez argued, obtaining expert reports in Mr. Dominguez’s case was not 

advisable given the limited scope of damages. Id. at 8. Instead, Mr. Dominguez

argued, it was reasonable to pursue settlement before obtaining expert reports. Id.

at 8. 

On October 6, 2014, Mr. Dominguez was ordered to provide the articles he 

referenced in his reply brief of July 16, 2014. Mr. Dominguez was also 

encouraged to present an argument for why these articles supported Mr. 

Dominguez’s claim. Later that same day, Ms. Toale moved to withdraw as 

counsel for Mr. Dominguez, citing “irreconcilable differences” with Mr. 

Dominguez. Ms. Toale served a copy of her motion on Mr. Dominguez at his last 

known address. 

On November 5, 2014, Mr. Dominguez, through Ms. Toale, filed the 

information requested in the undersigned’s October 6, 2014 order. Mr. Dominguez

filed a list of 14 articles that he argued provided a reasonable basis for the claim. 

On November 19, 2014, the Secretary filed his sur-reply to Mr. Dominguez’s 

response. In his reply, the Secretary argued that the articles did not change the 

evaluation of Mr. Dominguez’s case since, inter alia, none of the articles linked 

Mr. Dominguez’s specific vaccine with his specific injury. Resp’t’s Resp. at 5.

Following the submission of the Secretary’s sur-reply, Mr. Dominguez’s motion 

for interim fees and costs became ripe for adjudication.

However, the undersigned did not rule on Mr. Dominguez’s interim fees 

motion until nearly two and a half years later, on March 6, 2017. During this 

interim period, Ms. Toale was substituted as counsel by Mr. Shoemaker and Mr. 

Shoemaker took some time to become acclimated with the case. The undersigned 

deferred ruling on the motion for Ms. Toale’s attorneys’ fees and costs because the 

outcome of the motion could rise and fall with Mr. Dominguez’s ability to obtain 

an expert report in support of compensation. 
5

Through Mr. Shoemaker, Mr. Dominguez was ultimately able to retain an 

expert in support of his claim, Ms. Judy Mikovits Ph.D.,2and filed her first report 

on May 18, 2016, exhibit 24, just a month short of four years after Mr. Dominguez 

filed his petition. Ms. Mikovits then supplemented her initial report with a second 

report on January 6, 2017. Exhibit 68. 

After submitting the reports from Ms. Mikovits, the undersigned awarded 

Mr. Dominguez a substantial portion of the 2014 fees in a decision issued on 

March 6, 2017. As a prerequisite to awarding fees, the undersigned found that Mr. 

Dominguez’s petition possessed a reasonable basis. This finding was largely based 

upon the expert reports prepared by scientists who appeared to be sufficiently 

credentialed. See First Interim Fees Decision, issued March 6, 2017, 2017 WL 

1316961, at *3 (emphasizing the credentials of Mr. Ruscetti and Ms. Mikovits in 

finding that Mr. Dominguez’s petition was, once their reports were filed, supported 

by reasonable basis). 

On July 29, 2017, Mr. Dominguez filed a second motion for interim fees and 

costs, requesting $40,915.80 in fees and $34,095.70 in costs, for a total of 

$75,011.50. These fees and costs covered the period running from the start of Mr. 

Shoemaker’s representation, April 22, 2015, and ending on the date of the filing of 

the motion, July 29, 2017.

Two days later, the Secretary filed his response to Mr. Dominguez’s motion. 

In his response, the Secretary did not object to Mr. Dominguez’s request. Resp’t’s 

Resp. at 2. Instead, the Secretary stated that he was “satisfied that the statutory and 

other legal requirements for an award of attorneys’ fees and costs are met.” Id.

Based on the rationale expressed in Swintosky v. Secʼy of Health & Human 

Servs., No. 12-403V, 2017 WL 5899239 (Fed. Cl. Spec. Mstr. Nov. 6, 2017), on 

December 18, 2017, the undersigned awarded Mr. Dominguez the full amount of 

his request for fees and costs. As part of the analysis, the undersigned found that 

Mr. Dominguez’s petition was supported by reasonable basis. The reasonable 

basis determination explicitly relied on the analysis from just a few months prior 

 

2 Although both Ms. Mikovits and Mr. Ruscetti signed the expert reports, Ms. Mikovits 

has appeared to testify in all cases in which she and Mr. Ruscetti submitted joint reports. Thus, 

all references are made to her individually. Because of the important distinction between 

physicians and non-physicians in this program, the undersigned refers to Ms. Mikovits as “Ms.” 
6

and noted that in the intervening months Mr. Dominguez had filed yet another 

report from his experts. See Second Interim Fees Decision, slip op. at 2 (Fed. Cl. 

Spec. Mstr. Dec. 18, 2017). On January 16, 2018, the Secretary moved for a 

review of the undersigned’s second decision on interim fees and costs. The 

Secretary did not challenge the determination that Mr. Dominguez had a 

reasonable basis, but instead challenged the undersigned’s decision to grant Mr. 

Dominguez’s fees request without an independent evaluation of the reasonableness 

of the amount of fees and costs awarded. Resp’t’s Mem. Supp. Mot. for Review, 

filed Jan. 16, 2018, at 1. 

During the pendency of the review of the interim fees decision, the parties 

proceeded with litigation on the issue of Mr. Dominguez’s entitlement to 

compensation. Mr. Dominguez filed his prehearing brief on December 22, 2017,

and the Secretary filed his responsive brief on February 2, 2018. Noting 

substantial deficiencies in Mr. Dominguez’s prehearing brief, the undersigned 

ordered Mr. Dominguez to file a supplemental brief. Order, issued Mar. 6, 2018, 

at 1-2. Mr. Dominguez filed his supplemental brief on March 13, 2018. 

As is often the case, preparing for Mr. Dominguez’s hearing crystalized 

elements of Mr. Dominguez’s claim. In this case, what became evident in the 

weeks leading up to the hearing was that the expert reports from Ms. Mikovits 

carried little probative value because they were poorly written and researched.

Concerns about Mr. Dominguez’s case were communicated to Mr. Dominguez

during the prehearing status conference on March 20, 2018. See order, issued Mar. 

22, 2018, at 1. Furthermore, the undersigned informed Mr. Dominguez that the 

reasonable basis for his petition was “fragile.” Id. at 2. Shortly thereafter, Mr. 

Dominguez moved to dismiss his case. Pet’r’s Mot., filed Mar. 30, 2018. This 

motion for dismissal was granted. Decision, issued Apr. 2, 2018, 2018 WL 

2225540. 

While Mr. Dominguez’s claim of entitlement was wrapping up, his second 

interim fees motion again became ripe after Judge Kaplan granted the Secretary’s 

motion for review on March 8, 2018. Judge Kaplan’s Opinion and Order 

remanded the fees motion to the undersigned for reconsideration applying the 

“lodestar approach set forth in the controlling precedent.” Opinion and Order, 136 

Fed. Cl. 779 (2018). 
7

The undersigned issued a fees decision in congruence with Judge Kaplan’s 

order on May 25, 2018. Second Interim Fees Decision on Remand, 2018 WL 

3028975. In this decision, the undersigned evaluated only the narrow question of 

whether the amount of Mr. Dominguez’s requested fees and costs was reasonable. 

The statutory basis for the award, which was evaluated in the original fees decision 

but was not challenged by the Secretary and was not reviewed by Judge Kaplan, 

remained undisturbed. In the Decision on Remand, the undersigned awarded Mr. 

Dominguez $39,464.25 of the $75,011.50 requested. Most notably, the 

undersigned significantly reduced the proposed hourly rate for the work by Ms. 

Mikovits. The decision identified troubling aspects about Ms. Mikovits’

credentials as a scientist. Id. at *5-7. Specifically, after substantiated allegations 

of data misrepresentation were brought against her, Ms. Mikovits had been fired 

from her last-held research position. Id. Perhaps more importantly, the 

undersigned identified several ways in which Ms. Mikovits’ reports were “riddled 

with errors, exaggerations, and false statements.” Id. at *6-7. After evaluating Ms. 

Mikovits’ experience and training, her reputation in the field, and the quality of the 

work submitted, the undersigned found a rate of $75.00 per hour to be reasonable 

estimate of the value of her time. Id. at *7. The decision on fees and costs was 

not challenged and judgment entered on June 26, 2018.

On October 29, 2018, Mr. Dominguez filed a motion for an award of final 

fees and costs. Mr. Dominguez requested $27,688.25 in attorneys’ fees and 

$10,180.65 in costs.3 Notably absent in Mr. Dominguez’s motion was any 

discussion of the reasonable basis for the petition. The Secretary’s response was 

similarly thin on the merits, stating only that he deferred to the special master to 

determine whether reasonable basis for the petition exists. Resp’t’s Resp., filed 

Oct. 31, 2018, at 2.

The undersigned ordered the parties to file supplemental briefs that 

marshaled the objective evidence in support of the reasonable basis for Mr. 

Dominguez’s claim of a vaccine injury. Order, issued Nov. 16, 2018, at 2 (citing 

Simmons v. Sec'y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017); 

Chuisano v. Secʼy of Health & Human Servs., No. 07-452V, 2013 WL 6234660, at 

 

3 Petitioner’s fees motion requests $10,880.65 in costs. Pet’r’s Fees Mot., filed Oct 29, 

2018, at 1. However, the tabulation of costs totals only $10,180.65. Id. at 9. It appears the 

figure $10,880.65 is a typographical error. Thus, this decision uses $10,180.65 throughout.
8

*12-13 (Fed. Cl. Spec. Mstr. Oct. 25, 2013), mot. for rev. denied, 116 Fed. Cl. 276 

(2014)). 

Mr. Dominguez submitted his supplemental brief in support of reasonable 

basis on December 7, 2018. On December 12, 2018, the Secretary submitted his 

response. This time, the Secretary clarified that his position was that Mr. 

Dominguez’s petition never possessed a reasonable basis. This position was a shift 

from his July 31, 2017 position that reasonable basis existed at that time. Mr. 

Dominguez filed a reply brief two weeks later. 

Analysis

The pending motion raises two sequential questions. The first issue is

whether Mr. Dominguez’s petition was supported by reasonable basis and thus

eligible to receive an award of attorneys’ fees and costs. Second, because Mr. 

Dominguez’s petition was supported by reasonable basis, the next issue is whether

the amount Mr. Dominguez requested for his attorneys’ fees and costs was 

reasonable. Both questions are addressed in series, below. 

I. Eligibility for Reimbursement of Fees and Costs

A petitioner who has not received compensation may be awarded 

“compensation to cover petitioner’s reasonable attorneys’ fees and other costs 

incurred in any proceeding on such petition if the special master or court 

determines that the petition was brought in good faith and there was a reasonable 

basis for the claim.” 42 U.S.C. § 300aa-15(e)(1). 

The Secretary does not argue that Mr. Dominguez lacks good faith, and 

there is no evidence to indicate Mr. Dominguez does not believe his claim is valid. 

Thus, the undersigned finds the petition was brought in good faith. However, the 

parties disagree about whether Mr. Dominguez’s petition was supported by 

reasonable basis and that element is thus the focus of this aspect of the decision. 

A. The Parties’ Arguments

Mr. Dominguez’s argument in support of his claim that TDaP can cause the 

injury he suffered consisted of a long block quote from an article compiling four
9

case reports published in the Journal of Clinical Rheumatology. Pet’r’s Br., filed 

Dec. 7, 2018, at 6 (citing exhibit 34 (Birck et al.) at 2). The article, titled “ANCAAssociated Vasculitis Following Influenza Vaccination: Causal Association or 

Mere Coincidence?” reported on four cases over 10 years of new onset or relapsing 

vasculitis following influenza vaccination and notes that “it seems possible” for the 

temporal proximity to be more than coincidental. Exhibit 34 (Birck) at 1. In each 

case report, the duration between vaccination and the onset of symptoms was 

approximately 1-3 weeks. Id. at 2. Based on these case reports, the authors 

speculate about a possible causal association and the underlying mechanism. 

The paragraph of Mr. Dominguez’s brief focused to the question of timing 

was difficult to understand. The argument referenced both the expert opinion of 

Ms. Mikovits as well as an article by van den Brom et al. Pet’r’s Br., filed Dec. 7, 

2018, at 7 (citing exhibit 41 (van den Brom) at 2). The van den Brom article is a 

case report of an individual who, within a week of administration of a checkpoint 

inhibitor (a cancer treatment that interferes with internal checks on the immune 

system), developed vasculitis. Exhibit 41 (van den Brom) at 2. Mr. Dominguez, in 

his brief, cited Ms. Mikovits’ application of that case report to Mr. Dominguez’s 

case, specifically that: 

In [van den Brom], immune therapy known as checkpoint inhibitors 

induced GPA rapidly but noted in retrospect that “the preexisting 

pulmonary nodular abnormalities might have been subclinical GPA” 

due to previous immune therapy. Thus, GPA can occur rapidly or over 

several months to years depending upon the extent of the immune 

dysregulation and overstimulation at the time the checkpoint inhibitor 

(vaccine) is given. Thus, the timing and course of Mr. Dominguez’ 

disease development supports our general theory of causation. 

Pet’r’s Br., filed Dec. 7, 2018, at 7 (citing exhibit 24 at 15). Although the 

undersigned continues to struggle understanding Mr. Dominguez’s reliance on the 

van den Brom article, the Birck article was able to provide some helpful, though 

not persuasive, information on the question of timing. See exhibit 34 (Birck) at 2 

(noting onsets, in case reports, of between 2 and 3 weeks following vaccination).

In his response, the Secretary argued that reasonable basis for the petition 

did not exist. As an initial matter, the Secretary noted that the undersigned special 
10

master had previously found that reasonable basis for the petition did exist.

Resp’t’s Br., filed Dec. 12, 2018, at 7. The Secretary did not appear to 

acknowledge that he had previously conceded that the petition had a reasonable 

basis in his July 31, 2017 response to the second interim fees motion. See id. The 

Secretary argued that the undersigned’s previous finding of reasonable basis was 

immaterial since the Federal Circuit has clarified in the interim period the 

framework for the reasonable basis analysis. Id. Whether Mr. Dominguez’s case 

satisfied that framework, the Secretary argued, was the only question for this 

decision. Id. 

In contrast to the Secretary’s lengthy opposition to reasonable basis in his 

July 9, 2014 brief opposing Mr. Dominguez’s first motion for interim fees, the 

Secretary’s brief did not address the substance of the evidence supporting Mr. 

Dominguez’s claim. Instead, the Secretary simply referenced his 2014 brief, 

which was written before there was any expert opinion evidence or medical 

literature filed the case.

4

 

 

4 A substantial portion of the Secretary’s brief considered the question of whether the 

Vaccine Act allowed for reasonable basis to come and go during the pendency of the proceeding. 

The Secretary argued that, based on Simmons, reasonable basis was a one-time analysis and that 

it either existed or it did not. Resp’t’s Br., filed Dec. 12, 2018, at 4 (“a claim cannot have a 

reasonable basis and then lose it during the pendency of the claim”). The Secretary recognized 

that judges of the Court of Federal Claims and special masters had long been interpreting the 

Vaccine Act to allow for reasonable basis to be a dynamic inquiry based on the evidence then in 

the record but argued that this position was legally erroneous based upon the same Federal 

Circuit precedent. Id. at 6. Conceivably, if the Secretary’s interpretation of the Vaccine Act 

were correct, an analysis of the reasonable basis for Mr. Dominguez’s petition may be bound by 

earlier decisions finding that his petition had a reasonable basis at the time the decisions were 

issued.

Mr. Dominguez’s case was not the first time that the Secretary had argued this 

interpretation of the Vaccine Act before the undersigned special master. The Secretary raised 

this same argument in a response to a fees motion filed in Frantz v. Health and Human Services, 

No. 13-178V. Because of the importance of this question and to ensure consistent applications 

of the law in different cases before the undersigned special master, the adjudication of Mr. 

Dominguez’s fees petition was delayed until after oral argument was to be held on March 20, 

2019, in Frantz. 

Just days before the scheduled oral argument in Frantz, the Secretary disclaimed his 

position that reasonable basis cannot be gained or lost in light of the Federal Circuit’s recent 

nonprecedential order in R.K. R.K. v. Sec'y of Health & Human Servs., 760 F. App'x 1010, 

1012 (Fed. Cir. 2019). As a result, the position is not further evaluated here. 
11

B. Standards for Adjudication of Reasonable Basis

Reasonable basis is purely an objective evaluation of the weight of the 

evidence. Simmons, 875 F.3d at 636. Because evidence is “objective,” the 

Federal Circuit’s description is consistent with viewing the reasonable basis 

standard as creating a test that petitioners meet by submitting evidence. See

Chuisano, 2013 WL 6234660, at *12-13 (explaining that reasonable basis is met 

with evidence), mot. for rev. denied, 116 Fed. Cl. 276 (2014). While the specific 

amount of supporting evidence required to satisfy reasonable basis is not welldefined, the evidence must support the claim set forth in the petition. By way of 

contrast, for example, there cannot be powerful evidence in the record that 

effectively forecloses compensation. Furthermore, subjective factors, such as a 

looming statute of limitations, shall not be considered in determining whether 

reasonable basis for the petition existed. Simmons, 875 F.3d at 636. 

The Federal Circuit and judges of the Court of Federal Claims have provided 

some guidance as to what reasonable basis is not. A petition based purely on 

“unsupported speculation,” even speculation by a medical expert, is not sufficient 

to find a reasonable basis. Perreira v. Secʼy of Health & Human Servs., 33 F.3d 

1375, 1377 (Fed. Cir. 1994) (“Congress must not have intended that every 

claimant, whether being compensated or not under the Vaccine Act, collect 

attorney fees and costs by merely having an expert state an unsupported opinion 

that the vaccine was the cause in-fact of the injury”). As another example, when 

“the medical and other written records contradict the claims brought forth in the 

petition,” a special master is not arbitrary in concluding that reasonable basis for 

the petition did not exist. Murphy v. Secʼy of Health & Human Servs., 30 Fed. Cl. 

60, 62 (1993), affʼd without opinion, 48 F.3d 1236 (Fed. Cir. 1995) (table). 

It is the burden of the petitioner to establish the petition’s reasonable basis. 

Carter v. Secʼy of Health & Human Servs., 132 Fed. Cl. 372, 379 (2017) (citing 

Woods v. Secʼy of Health & Human Servs., 105 Fed. Cl. 148, 152 (2012) and 

McKellar v. Secʼy of Health & Human Servs., 101 Fed. Cl. 297, 305 (2011)). 

C. Analysis of Reasonable Basis

As reviewed in the procedural history, above, this is now the third time that 

the undersigned has evaluated the reasonable basis of Mr. Dominguez’s petition. 

Notably, with each motion, the position of the Secretary has shifted. 
12

In response to Mr. Dominguez’s first fees motion, filed June 10, 2014, the 

Secretary stridently opposed the reasonable basis of the petition, largely on a lack 

of evidence supporting a connection between vaccines and Mr. Dominguez’s 

injury. Resp’t’s Br., filed Nov. 19, 2014. Mr. Dominguez cured this deficiency by 

filing a report from Ms. Mikovits in 2016. Exhibit 24. Ms. Mikovits’ report paved 

the way for the First Interim Fees Decision. 

In response to Mr. Dominguez’s second fees motion, filed July 29, 2017, the 

Secretary conceded that reasonable basis for the petition existed. Resp’t’s Br., 

filed July 31, 2017, at 2 (“respondent is satisfied that the statutory and other legal 

requirements for an award of attorneys’ fees and costs are met”). 

Now, in response to Mr. Dominguez’s third and final fees motion, filed 

October 29, 2018, the Secretary, once again challenges the reasonable basis of the 

petition. This time around, the Secretary states, contrary to the position stated in 

his July 31, 2017 brief, the petition “never had a reasonable basis.” Resp’t’s Br., 

filed Dec. 12, 2018, at 7. The Secretary implicitly explains the shift in position as 

being a consequence of the Federal Circuit’s holding in Simmons that reasonable 

basis was purely an objective inquiry. Id. at 7. The Secretary’s explanation that 

Simmons justifies a change in his position is unconvincing since Simmons was 

decided on November 7, 2017, a month and a half before the decision on interim 

fees was issued on December 18, 2017. During that time, the Secretary did not 

make any filing noting additional authority that affected the analysis. Even more, 

it is not clear how the holding in Simmons would change the analysis of the 

reasonable basis for Mr. Dominguez’s petition.

An evolution in the Secretary’s position on reasonable basis is not 

necessarily surprising. Reasonable basis is satisfied with evidence. Chuisano, 

2013 WL 6234660, at *12-13. In this case, evidence developed throughout its 

pendency. Some of that evidence supported a claim of causation, some of it did

not. A review of the evidence (objective factors) may cause a shift in the 

Secretary’s position on reasonable basis. It is also now well-settled law that the 

reasonable basis of a petition may come and go during the pendency of a 

proceeding. R.K., 760 F. App'x at 1012; Perreira, 33 F.3d at 1377.
13

However, the change in the Secretary’s position raises some concern 

because the undersigned found reasonable basis in December 2017 and the 

evidence has not changed significantly. The only substantive filings entered since 

that date are some supplemental medical records from Mr. Dominguez, exhibits

87-89, and the parties’ prehearing submissions. The Secretary’s prehearing 

submissions did include a short supplemental report from his expert, Dr. 

Forsthuber, that provided summaries of several medical articles as well as 

clarifications regarding his opinion about the onset of Mr. Dominguez’s condition. 

Exhibit TT at 3-5. The Secretary’s most recent brief on reasonable basis did not 

present argument for how these medical articles and statement of expert opinion 

changed the reasonable basis calculus. Notably, the Secretary’s most recent brief 

did not provide argument addressing the substance of any of the evidence. Since 

the reasonable basis analysis is ultimately an analysis of the underlying evidence in 

support of the petition, this omission was notable. See Simmons, 875 F.3d at 635;

Chuisano, 2013 WL 6234660, at *12-13. In the absence of additional evidence 

that may shift the reasonable basis analysis since the December 18, 2017 decision 

granting Mr. Dominguez interim fees, the undersigned is reluctant to now change 

course. 

To be sure, the present fees motion requires an independent finding that Mr. 

Dominguez satisfies the statutory requirements for attorneys’ fees and costs; citing 

the Secretary’s previous position and the lack of new evidence since that position 

was entered is likely not enough. See McIntosh v. Sec'y of Health & Human 

Servs., 139 Fed. Cl. 238 (2018). Reasonable basis is not a demanding standard and 

the evidence presented by Mr. Dominguez, though weak, meets that requirement. 

Accordingly, Mr. Dominquez is eligible for compensation of his reasonable 

attorneys’ fees and costs. 

II. Reasonableness of the Requested Amount

The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 

Cir. 2008). First, a court determines an “initial estimate ... by ‘multiplying the 

number of hours reasonably expended on the litigation times a reasonable hourly 

rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

Second, the court may make an upward or downward departure from the initial 
14

calculation of the fee award based on specific findings. Id. at 1348. Here, because 

the lodestar process yields a reasonable result, no additional adjustments are 

required. 

In light of the Secretary’s lack of objection to the amount of fees and costs 

requested by Mr. Dominguez, the undersigned has reviewed the fee application for 

its reasonableness. See McIntosh, 139 Fed. Cl. at 238.

A. Attorneys’ Fees

The hourly rates charged by Mr. Shoemaker and the members of his firm are 

in line with those previously awarded by other special masters. See, e.g., Nixon v. 

Sec'y of Health & Human Servs., No. 13-738V, 2019 WL 1149942, at *2 (Fed. Cl. 

Spec. Mstr. Feb. 6, 2019) (noting that “the rates requested herein are in 

conformance with what myself and other special masters have consistently 

awarded Shoemaker, Gentry & Knickelbein attorneys”). The undersigned has 

independently reviewed the requested rates and finds them to be reasonable. 

While the requested hourly rates are reasonable, the actual work expended, 

as detailed in the attorneys’ billing statements, presents two issues. 

First, Ms. Knickelbein continues to perform work that is largely consistent 

with the work of a paralegal. This same concern was stated in the most recent 

decision on interim fees and costs. Second Interim Fees Decision on Remand, 

2018 WL 3028975, at *2-3. The billing statements accompanying the present 

motion indicate that the Shoemaker firm has not addressed this issue with their 

billing practices. 

As noted in the interim fees decision, work of the nature typically performed 

by a paralegal or administrative assistant should be billed at a rate commensurate 

with that work, even when the work is performed by an attorney. See Valdes v. 

Sec'y of Health & Human Servs., 89 Fed. Cl. 415, 425 (2009) (noting that “the 

Special Master exercised appropriate discretion in denying requested costs for 

work performed by petitioner's counsel's associate” when the special master 

determined “that the associate's time spent obtaining medical records was more 

consistent with paralegal duties.”); see also Bratcher v. United States, 136 Fed. Cl. 

786, 796 (2018) (declining to reimburse for work even at paralegal rates when 
15

plaintiffs failed to demonstrate that the work was not “largely clerical or secretarial 

in nature”).

Ms. Knickelbein’s work continues to be more consistent with the work of a 

paralegal, or even an administrative assistant, than the work of an experienced 

attorney. Ms. Knickelbein’s billing entries indicate that her role is largely as a gobetween for the Office of Special Masters and the attorneys who actually litigate 

the cases, Mr. Shoemaker and Ms. Gentry. Ms. Knickelbein reviews the docket, 

emails Mr. Shoemaker regarding filings in the docket, and then makes entries onto 

the docket, presumably at Mr. Shoemaker’s direction. She also similarly interacts 

with the expert witnesses. These tasks, in the undersigned’s experience, are almost 

universally billed at a non-attorney rate, if they are billed at all. Accordingly, Ms. 

Knickelbein’s work will be reimbursed at the top of the McCulloch range for 

paralegal work: $148 in 2017 and $153 in 2018. This results in a deduction of 

$3,728.00. 

In addition, Mr. Shoemaker’s entries continue to be exceedingly vague, 

which frustrates the undersigned’s review of the reasonableness of the number of 

hours spent on Mr. Dominguez’s petition. While this problem with Mr. 

Shoemaker’s entries was also raised in the second interim fees decision, it is not 

limited to this case. Instead, as with Ms. Knickelbein’s entries, it appears to be an 

endemic issue with Mr. Shoemaker’s billing habits. See Nixon, 2019 WL 

1149942, at *2 (citing Cianni v. Sec'y of Health & Human Servs., No. 16-1052V, 

slip op. at 2-3 (Fed. Cl. Spec. Mstr. Sept. 21, 2018); Second Interim Fees Decision 

on Remand, 2018 WL 3028975, at *3; Brodie v. Sec'y of Health & Human Servs., 

No. 17-437V, 2018 WL 3991233, at *3 (Fed. Cl. Spec. Mstr. June 26, 2018); 

Eworonsky v. Sec'y of Health & Human Servs., No. 04-992V, 2018 WL 2225379, 

at *4 (Fed. Cl. Spec. Mstr. Apr. 20, 2018)). As with the second interim fees 

decision, the undersigned’s concern is not so much whether Mr. Shoemaker is 

overbilling; the total number of hours appears generally reasonable. The concern 

instead is that because of the way Mr. Shoemaker bills, the undersigned must resort 

only to general estimations about the overall number of hours billed as opposed to

an assessment of the reasonableness of the underlying work that was performed. 

A review of Mr. Shoemaker’s billing entries hints that Mr. Shoemaker may 

be working to address this problem. Although it is difficult to tell, some of the 

later billing entries appear to have more content than the earlier ones. Based on his 

decades of work in this Program, Mr. Shoemaker deserves the benefit of the doubt. 
16

Accordingly, the undersigned concludes that Mr. Shoemaker is making a 

purposeful effort to improve the detail in his billing statements and thus a punitive 

deduction is not required. To address concerns about reasonableness, the 

undersigned finds only a 10% reduction to be appropriate. This results in a 

deduction of $1,009.90.

In addition to the fees requested in the original motion, Mr. Dominguez also

requests $3,480.00, or eight hours at $435.00 per hour, for fees associated with the 

preparation of the brief in support of reasonable basis. This amount is awarded in 

full.

B. Attorneys’ Costs

Mr. Dominguez also moves for reimbursement of $10,180.65 in attorneys’ 

costs. Except for $130.65 in costs associated with medical records, it is fully 

accounted for by an invoice of $10,050.00 for Mr. Dominguez’s expert witness, 

Ms. Judy Mikovits. 

Like attorneys’ fees, a request for reimbursement of costs must be 

reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. 

Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Reasonable expert fees are 

determined using the lodestar method, in which a reasonable hourly rate is 

multiplied by a reasonable number of hours. Caves v. Sec'y of Health & Human 

Servs., 111 Fed. Cl. 774, 779 (2013).

The undersigned has previously set Ms. Mikovits’ reasonable hourly rate at 

$150 per hour based on her qualifications and experience. To set this rate, the 

undersigned started with a rate of $250 per hour as being a reasonable rate for the 

average non-medically-trained immunologist serving as an expert witness in this 

Program. Second Interim Fees Decision on Remand, 2018 WL 3028975, at *5. 

This $250 benchmark is based on the undersigned’s experience compensating 

medical and non-medical experts with varying levels of qualifications. 

However, Ms. Mikovits is not the average non-medically-trained 

immunologist. She does not have an academic appointment, she does not have an 

ongoing research program, and her publication history is not impressive. See

exhibit 84. Perhaps even more concerning, Ms. Mikovits has been discredited as a 

research scientist due to substantiated allegations of data misrepresentation in at 

least one of her most notable publications. Second Interim Fees Decision on 
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Remand, 2018 WL 3028975, at *5-6 (citing Rogero v. Sec'y of Health & Human 

Servs., No. 11–770V, 2017 WL 4277580, at *47 (Fed. Cl. Spec. Mstr. Sept. 1, 

2017); Trine Tsouderos, Discredited Chronic Fatigue Researcher in California Jail, 

Chicago Tribune, Nov. 22, 2011)). Accordingly, setting Ms. Mikovits’ reasonable 

hourly rate based on individuals whose curriculum vitaes are categorically more 

impressive appears inapposite. Instead, the undersigned found $150 per hour to be 

a reasonable assessment of the value of Ms. Mikovits’ time. 

Although $150 per hour is a reasonable hourly rate for someone with Ms. 

Mikovits’ credentials as an expert, her performance as an expert witness in this 

case was so poor that the undersigned felt compelled to make an additional 50% 

deduction from her baseline rate of $150. Id. at *6-7 (citing Sabella v. Sec'y of 

Health & Human Servs., 86 Fed. Cl. 201, 206 (2009) (noting that an appropriate 

rate for an expert also depends, in part, on “the nature, quality, and complexity of 

the information provided”). This downward adjustment, though substantial in 

amount, was called for by the extent to which Ms. Mikovits’ reports incorporated 

errors, exaggerations, and false statements to promulgate her opinions. Id.

Mr. Dominguez now asks for the undersigned to revisit this downward 

adjustment both retrospectively (to invoices addressed in the interim fees decision)

and prospectively (to invoices covered by the present fees motion). Pet’r’s Br., 

filed Dec. 7, 2018, at 8-9. The Secretary objects to any retrospective adjustments

to the amount awarded for Ms. Mikovits’ work, arguing that Mr. Dominguez is 

barred from relief since judgment has entered. Resp’t’s Br., filed Dec. 12, 2018, at 

7-8. Cf. McCulloch v. Sec'y of Health & Human Servs., 923 F.3d 998, 1001 (Fed. 

Cir. 2019) (holding that a merits judgment should not be reopened after the period 

for a motion for review has lapsed except for relief offered by Rule 60). 

Regardless of any asserted basis for a retrospective adjustment, the undersigned is 

disinclined to revisit the rates previously awarded to Ms. Mikovits. 

Indeed, Mr. Dominguez has not raised any substantive challenge to the 

analysis in the interim fees decision and the undersigned has not independently 

identified any reason to disturb the finding. Instead, Mr. Dominguez cited the 

Chief Special Master’s fees decision in Rogero, stating that the Chief Special 

Master found $250.00 per hour to be reasonable. Pet’r’s Br., filed Dec. 7, 2018 at 

9 (citing Rogero v. Sec'y of Health & Human Servs., No. 11–770V, slip op. at 6-7

(Fed. Cl. Spec. Mstr. Aug. 22, 2018)). The undersigned has reviewed the Chief 

Special Master’s decision in Rogero and does not see how it supports Mr. 
18

Dominguez’s argument. Citing the undersigned’s second interim fees decision in 

this case, the Chief Special Master, was highly critical of Ms. Mikovits and—

without distinguishing between her hourly rate5and the number of hours billed—

cut Ms. Mikovits’ invoice by half. Rogero, issued Aug. 22, 2018, at 7. It is not 

clear how the Rogero fees decision can stand for the proposition that $250.00 per 

hour is a reasonable hourly rate for Ms. Mikovits’ work. 

In fact, as time has passed and the portfolio of work that Ms. Mikovits’ has 

submitted to the Vaccine Program has increased, it has become clear that Ms. 

Mikovits’ performance in this case was not an aberration. In case after case, Ms. 

Mikovits has done work not becoming of an expert witness and, far too often, 

relied on material misrepresentations. 

For instance, in McCabe v. Sec'y of Health & Human Servs., Ms. Mikovits 

made statements that she most likely knew were misrepresentations to buttress her 

credibility as an expert. No. 13-570V, 2018 WL 3029175, at *26 (Fed. Cl. Spec. 

Mstr. May 17, 2018). Prior to the hearing, the opposing expert noted that Ms. 

Mikovits’ C.V. included a paper that had been retracted following substantiated 

allegations of data misrepresentation. Id. at *18. In a subsequent report prepared 

by Ms. Mikovits, she claimed that the retraction of the Science paper was political 

and not scientific. Id. at *20. To support this, she cited a 2010 paper that 

“confirmed and extended” the results of her retracted paper. Id. Ms. Mikovits did 

not convey, however, that the second paper had also been retracted because the 

results did not hold up to further scrutiny. Id. at *26 (referencing Shyh-Ching Lo 

et al., Retraction for Lo et al., Detection of MLV-Related Virus Gene Sequences in 

Blood of Patients with Chronic Fatigue Syndrome and Healthy Blood Donors, 109 

Proc. Nat’l. Acad. Sci. 346 (2012)). To be sure, issues with this misrepresentation 

was not the only issue in McCabe, as in with the Dominguez case, the rest of Ms. 

Mikovits’ testimony was found to be particularly unpersuasive and unfounded in 

the record. See McCabe, 2018 WL 3029175, at *53.

 

Concerns about potential misrepresentations in Ms. Mikovits’ testimony 

continues today. In a recently issued decision, the Chief Special Master remarked 

on her concerns about Ms. Mikovits’ testimony. The Chief Special Master 

conveyed that she was “especially concerned by [Ms. Mikovits’] lack of citation to 

 

5

In Rogero, Ms. Mikovits requested $350 per hour. Rogero, slip op. at 6 (Aug. 22, 2018).
19

appropriate medical literature, or misuse of the medical literature [she did] cite.” 

Deisher v. Sec'y of Health & Human Servs., No. 17-294V, 2019 WL 1870737, at 

*15 (Fed. Cl. Spec. Mstr. Apr. 1, 2019). 

Mr. Dominguez’s petition, McCabe, and Deisher are only three cases of a 

number in which Ms. Mikovits has participated. To avoid the possibility of 

drawing conclusions from an unrepresentative sample, the undersigned searched a 

computerized database to identify all entitlement decisions referencing Ms. 

Mikovits. This search identified four other cases, none of which spoke positively 

of the opinions she provided.

In Rogero v. Sec'y of Health & Human Servs., the special master concluded 

that Ms. Mikovits’ theory was incoherent, relied on facts not in the record, and that 

she provided opinions on topics on which she was “wholly unqualified” to opine.

No. 11-770V, 2017 WL 4277580, at *24 (Fed. Cl. Spec. Mstr. Sept. 1, 2017), mot. 

for rev. denied, slip op. (Fed. Cl. Jan 11, 2018), aff'd, 748 F. App'x 996 (Fed. Cir. 

2018). In Bertolucci v. Sec'y of Health & Human Servs., the special master found

the reports from Ms. Mikovits to be “confusing and unintelligible.” No. 15-

1573V, 2018 WL 4784202, at *1 (Fed. Cl. Spec. Mstr. Aug. 29, 2018). In Barker 

v. Sec'y of Health & Human Servs., the special master found her medical theories 

to be “unpersuasive and inapplicable to the instant case.” No. 16-1554V, 2018 WL 

2772454, at *2 (Fed. Cl. Spec. Mstr. May 11, 2018). And in Rose v. Sec'y of 

Health & Human Servs., the special master found her reports to be, simply, 

“unpersuasive.” No. 16-1095V, 2019 WL 1531521, at *1 (Fed. Cl. Spec. Mstr. 

Mar. 15, 2019). 

Based on the sum of Ms. Mikovits’ experience in this Program, her 

qualifications to be an expert witness are questionable. Ms. Mikovits’ reputation at 

the beginning of her participation in the Vaccine Program was far less impressive 

than most. However, at least here, petitioners were permitted to continue with her 

as their expert witness with the hope that those aspects of her experience that were 

impressive would provide petitioners and the Vaccine Program value. 

Furthermore, the undersigned is aware that petitioners have reported some 

difficulty obtaining expert testimony in support of their petitions. To the extent 

that this difficulty is the result of deficits in the underlying merits of some 

petitioners’ claims versus systemic obstacles to petitioners in this Program is not 

clear. As with most things, it is likely to be a combination of both. Regardless, 
20

Ms. Mikovits has now provided enough written and oral testimony that her 

performance in this Program can be evaluated. The conclusion of that assessment, 

from the undersigned’s vantage point, indicates that she does not possess the 

characteristics of an effective expert witness. 

By this point, continuing to note that Ms. Mikovits submits substandard 

work-product and paying her for that work-product appears to be internally 

inconsistent. By reimbursing Ms. Mikovits for her work, this Program is implicitly 

stating that her work brings value while, at the same time, stating explicitly in 

decision after decision that this is not so. This discordance is not easily explained.

Nevertheless, the undersigned recently awarded Mr. Dominguez 

reimbursement for Ms. Mikovits’ work at an hourly rate of $75.00. Deciding, so 

shortly after the second interim fees decision, that Ms. Mikovits’ work is not 

compensable at all may be unfair to Mr. Dominguez. Accordingly, the 

undersigned will continue to award reimbursement for Ms. Mikovits’ work in this 

case at the $75.00 rate. However, petitioners and petitioners’ counsel should be 

forewarned that because of the substantial issues with Ms. Mikovits’ performance 

as an expert witness, expecting any reimbursement for her work-product going 

forward, at least from the undersigned special master, would be misguided. 

Beyond issues with Ms. Mikovits’ hourly rate, her invoice is also 

problematic. Ms. Mikovits’ invoice requests reimbursement for 43 hours of work. 

Pet’r’s Fees Mot., filed Oct 29, 2018, at 11. This amount is not concordant with 

the amount of work performed during the period covered by the invoice, which 

runs from March 20, 2017 to March 26, 2018. During that time, Ms. Mikovits 

submitted one responsive report, exhibit 86. This report was four pages long, three 

pages of which was copied and pasted abstracts from cited articles. More 

substantially, Ms. Mikovits also submitted annotations to previously cited 

references. See Pet’r’s Status Rep., filed Oct. 9, 2017, at 2-6. Ms. Mikovits also 

performed some ancillary work, including helping the attorneys with the pretrial 

brief.

Ms. Mikovits’ actual invoice does not help the undersigned ascertain how 43 

hours of work was expended. The invoice relies on block entries, the most 

egregious of which was 17 hours billed for “review new records and literature.” 

Pet’r’s Fees Mot., filed Oct. 29, 2018, at 11. This type of block-billing frustrates 
21

the undersigned’s statutory obligation to find the requested costs reasonable before 

awarding them under the authority provided by the Vaccine Act. McIntosh, 139 

Fed. Cl. at 250; see also Caves, 111 Fed. Cl. at 781 (holding that expert costs can 

be reduced when expert witnesses fail to “create detailed time sheets 

contemporaneously” such that others can “monitor the work of those experts and 

ensure that the work they perform is both necessary and reasonable”). Based on 

the work submitted, the undersigned finds 10 hours to constitute a reasonable 

amount of time for the work performed. See Caves, 111 Fed. Cl. at 784 (holding 

that special masters may estimate the number of hours reasonably expended by an 

expert on a case). Accordingly, Mr. Dominguez is awarded $750.00 for expert 

costs and $130.65 for routine costs.

* * *

For the reasons stated above, Mr. Dominguez is awarded:

A lump sum of $27,311.00 in the form of a check made payable to Mr. 

Dominguez and Mr. Dominguez’s attorney, Clifford Shoemaker.

These amounts represent reimbursement attorneys’ fees and other litigation 

costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for 

review filed pursuant to RCFC Appendix B, the clerk of the court is directed to 

enter judgment herewith. 

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master