1

In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 19-414V

Filed: September 23, 2022

JOHNNY MATTHEWS,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Attorneys’ fees and costs; 

Reasonable basis; Evidence of 

vaccination

Renee J. Gentry, Vaccine Injury Clinic, George Washington Univ. Law School, 

Washington D.C, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent. 

Decision Regarding Attorneys’ Fees and Costs1

On March 19, 2019, petitioner, Johnny Matthews, filed a petition under the 

National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he 

suffered Guillain-Barre Syndrome (“GBS”) caused by his receipt of an influenza (“flu”) 

vaccination “on or around” November 10, 2013. (ECF No. 1, p. 1.) Petitioner’s case 

was ultimately dismissed for failure to establish that he had received a vaccine covered 

by this Program. (ECF No. 53.) 

Petitioner subsequently filed a motion for attorneys’ fees and costs. (ECF. No. 

64.) Respondent opposes this motion on the grounds that petitioner lacked either good 

faith or a reasonable basis in filing this petition. (ECF. No. 64.) For the reasons 

described below, petitioner is entitled to an award of attorneys’ fees and costs in the 

reduced amount of $33,556.18.

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will 

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government 

Act of 2002. See 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), petitioner has 14 days to identify and move to redact 

medical or other information the disclosure of which would constitute an unwarranted invasion of privacy. 

If the special master, upon review, agrees that the identified material fits within this definition, it will be 

redacted from public access.
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I. Procedural History 

This case was initially filed pro se by petitioner and was originally assigned to 

Special Master Sanders. His current counsel, Ms. Gentry, was substituted as counsel 

on April 29, 2019. (ECF No. 14.) The case was subsequently reassigned to me on 

August 28, 2019. (ECF No. 27.) 

Petitioner’s initial filings were inconsistent with respect to the date of petitioner’s 

alleged vaccination. His petition at turns referenced a date of either November 1, 2013, 

or November 10, 2013. (ECF No. 1, p. 1.) A separate filing, also captioned as a 

petition, indicated the vaccination occurred on an unspecified date in October 2013. 

(ECF No. 7, p. 1.) Petitioner later filed medical records and an affidavit on October 14, 

2019. (ECF No. 30; Exs. 1-5.) His affidavit described the circumstances of his 

vaccination and indicated it was administered in connection with a surgery that occurred 

on November 18, 2013. (Ex. 5, p. 1.) No record of vaccine administration was ever 

filed.

After petitioner confirmed he had filed all of his medical records, respondent filed 

a Rule 4(c) Report recommending against compensation. (ECF No. 48.) Respondent 

contended there was insufficient proof of vaccination. (Id.)

On February 23, 2021, petitioner filed a motion for a finding of fact regarding the 

question of whether he received a flu vaccination as alleged. (ECF No. 50.) On August 

19, 2021, I found that neither petitioner’s medical records nor his affidavit, alone or in 

combination, provided preponderant evidence that any flu vaccination was administered 

prior to the onset of petitioner’s GBS. (ECF No. 53; 2021 WL 4190265 (Fed. Cl. Spec. 

Mstr. Aug. 19, 2021).) 

On September 17, 2021, petitioner filed a Motion for Review. (ECF No. 55.)

Judge Horn of the US Court of Federal Claims denied the motion holding that the 

Special Master did not abuse his discretion in finding that the record did not constitute 

preponderant evidence that an influenza vaccine was administered to petitioner prior to 

his GBS diagnosis. (ECF No. 58; 157 Fed. Cl. 777 (2021).)

On April 5, 2022, petitioner filed a motion requesting $27,189.00 in attorneys’

fees, $9,517.50 in student fees, and $589.18 in costs. (ECF No. 64.) On April 15, 

2022, respondent filed a response requesting the petitioner’s motion for an award of 

fees and costs be denied on the grounds that his claim lacked reasonable basis. (ECF. 

No. 66.) No reply was filed. This motion is now ripe for resolution.

II. Good Faith and Reasonable Basis

a. Relevant Factual History

The factual history is set forth in greater detail in both the undersigned’s 

dismissal decision and the Court’s order and opinion denying petitioner’s motion for 
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review. (ECF No. 53, pp. 3-5; ECF No. 58, pp. 2-5.) Most pertinent to this motion, no 

record of vaccination exists for the vaccine allegedly at issue. However, some specific 

references in petitioner’s contemporaneous treatment records provided minimal support 

for the allegation.

In the months prior to his hospitalization for GBS, petitioner sought medical 

treatment on a number of occasions from two different hospitals. At these times, he 

was screened to determine whether he had received his seasonal flu vaccine. He 

answered inconsistently. (Compare Ex. 1, p. 13 (no on 10/13/13); Ex. 1, p. 29 (no on 

10/28/13); Ex. 1, p. 43 (yes on 11/10/13); Ex. 1, p. 111 (yes on 11/18/13); Ex. 1, p. 170 

(no on 11/25/13); Ex. 4, p. 1987 (vaccinations “current”); Ex. 1, p. 192 (no on 11/28/13); 

Ex. 4, pp. 633, 636 (no on 11/29/13); Ex. 4, p. 253 (yes on 1/18/14).) In the decision 

dismissing this case, I concluded for reasons discussed in greater detail within that 

decision that these inconsistent responses could not be harmonized with petitioner’s 

allegations and “without more, these notations cannot serve as evidence that any 

vaccination occurred.” (ECF No. 53, p. 9.)

On November 18, 2013, petitioner returned to the Carolinas Hospital emergency 

department with a severe right forearm wound sustained from a knife attack. (Ex. 1, p. 

98.) Petitioner averred that he received his flu vaccination in the course of this 

hospitalization. (Ex. 5, p. 1.) Again, for reasons discussed in greater detail in the 

decision dismissing this case, I concluded that “[t]he circumstances petitioner describes 

simply do not appear to be possible in light of what his hospitalization records show to 

have been his course of care.” (ECF No. 53, p. 9.) I indicated that “due to the facial 

unreliability of petitioner’s account it is not necessary to reach the question of 

petitioner’s credibility with regard to the specific points raised by respondent.” (Id. at n. 

5.) I further noted that “petitioner’s recollection is flatly contradicted by the specific 

confirmation contained in the hospital records that petitioner declined to be vaccinated 

during this hospitalization and that no flu vaccination was administered.” (Id. at 9.)

Petitioner was subsequently admitted to a different hospital on November 29, 

2013, for what was later diagnosed as GBS. His flu vaccination status upon admission 

was confirmed as indicating no flu vaccine for the current flu season. (Ex. 4, pp. 633, 

636.) An order was entered to administer a flu vaccination at discharge. (Ex. 4, p. 

2084.) Nonetheless, in the course of his ensuing hospitalization, petitioner’s physicians 

made specific efforts to confirm whether he had been previously vaccinated. 

A notation appears in petitioner’s medical records dated December 12, 2013 

instructing a nurse to call the Carolinas Hospital to determine whether a flu shot had 

been administered during petitioner’s prior admission. (Ex. 9, p. 307.) A separate 

notation includes a checkmark and the word “done.” (Id.) Clinical notes from the same 

date indicate: “contacted John Pennstrom, pharmacist at Carolinas Health System per 

MD order to find out if pt received flu shot prior to discharge. Stated there are no 

records of pt receiving the vaccination.” (Ex. 4, p. 298.) Subsequently, however, a 

handwritten note was added in petitioner’s medical file dated December 21, 2013, which 

indicates “recent shot followed by Guillain-Barre Syndrome” and instructs that the flu 
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vaccine should be added to petitioner’s allergy list. (Ex. 9, p. 294.) A later notation 

dated January 18, 2014 further indicates that “patient stated to nurse he already had the 

flu vaccine.” (Ex. 4, p. 253.)

Following the December 21, 2013 notation that petitioner’s GBS followed 

vaccination, his record was updated to include the flu vaccine among his allergies. (Ex. 

4, p. 533.) At that time, Dr. Duncan also discontinued the instruction that petitioner 

receive the flu vaccine upon discharge. (Ex. 9, p. 538.) A follow up consultation for 

pain management on January 7, 2014 indicated under allergies that petitioner “is now 

no longer a candidate for the flu shot,” but did not discuss petitioner’s prior vaccination 

history or the etiology of his GBS. (Ex. 4, p. 525.) Subsequently, it is noted in the

medical records of other providers that his GBS was secondary to a flu vaccination (Ex. 

3, p. 18) and the flu vaccine continued to be listed as an allergy (e.g. Ex. 9, p. 7).

b. Legal Standard

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 

15(e). Petitioners who are denied compensation for their claims brought under the 

Vaccine Act may be awarded attorneys’ fees and costs “if the Special Master or Court 

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

for the claim for which the petition was brought.” 42 U.S.C. § 300aa-15(e)(1); Cloer v. 

Sec'y of Health & Human Servs., 675 F.3d 1358, 1360–61 (Fed. Cir. 2012). Such an 

award is within the discretion of the Special Master. 42 U.S.C. § 300aa-15(e)(1). Thus, 

even if a claim is brought in good faith and has a reasonable basis, a Special Master 

may still deny attorneys’ fees. See 42 U.S.C. § 300aa-15(e)(1); Cloer, 675 F.3d at 

1362. “Good faith” and “reasonable basis” are two distinct requirements under the 

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

2017). 

“Good faith” is a subjective standard. Hamrick v. Sec’y of Health & Human 

Servs., No. 99-683V, 2007 WL 4793152, at *3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007). A 

petitioner acts in “good faith” if he or she holds an honest belief that a vaccine injury 

occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, 

at *5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). The standard for finding good faith has been 

described as “very low,” and findings that a petition lacked good faith are rare. Heath v. 

Sec’y of Health & Human Servs., No. 08-86V, 2011 WL 4433646, *2 (Fed. Cl. Spec. 

Mstr. Aug. 25, 2011).

“Reasonable basis,” however, is an objective standard. Unlike the good faith 

inquiry, reasonable basis requires more than just petitioner’s belief in his claim. See 

Turner, 2007 WL 4410030, at *6. In Cottingham v. Secretary of Health & Human 

Services, the Federal Circuit explained that to demonstrate a “reasonable basis,” the 

petitioner must come forward with objective evidence relating to the Vaccine Act’s prima 

facie petition requirements for the filing of a claim. 971 F.3d 1337, 1345-46 (Fed. Cir.

2020). Specifically, the petition must include an affidavit and supporting documentation 

demonstrated that the injured vaccinee:

(1) received a vaccine listed on the Vaccine Injury Table;
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(2) received the vaccination in the United States, or under certain stated 

circumstances outside of the United States;

(3) sustained (or had significantly aggravated) an injury as set forth in the 

Vaccine Injury Table (42 C.F.R. § 100.3(e)) or that was caused by the 

vaccine;

(4) experienced the residual effects of the injury for more than six months, 

died, or required an in-patient hospitalization with surgical intervention; and

(5) has not previously collected an award or settlement of a civil action for 

damages for the same injury.

Id. (citing § 300aa-11(c)(1).) In Cottingham, as in most reasonable basis inquiries, it 

was the third element -- the fact of an injury caused by the vaccine -- that was at issue. 

Id. at 1346. Here, however, the primary issue given the reason for dismissal is the first 

of the above-listed requirements – the fact of the vaccination itself – rather than the 

resulting causal relationship between that alleged vaccination and the injury. 

To establish a reasonable basis for attorneys’ fees, the petitioner need not prove 

a likelihood of success. See Woods v. Sec'y of Health & Human Servs., No. 10-377V, 

2012 WL 4010485, at *6-*7 (Fed. Cl. 2012). In general, a reasonable basis analysis 

“may include an examination of a number of objective factors, such as the factual basis 

of the claim, the medical and scientific support for the claim, the novelty of the vaccine, 

and the novelty of the theory of causation.” Amankwaa v. Sec’y of Health & Human 

Servs., 138 Fed. Cl. 282, 289 (2018); accord Cottingham, 971 F.3d 1337. “More than a 

mere scintilla but less than a preponderance of proof could provide sufficient grounds 

for a special master to find reasonable basis.” Cottingham, 917 F.3d at 1346. For the 

reasonable basis requirement, “the burden is on the petitioner to affirmatively 

demonstrate a reasonable basis.” McKellar v Sec'y of Health & Human Servs., 101 

Fed. Cl. 297, 305 (2011). 

More than a mere scintilla of evidence has been characterized as “evidence 

beyond speculation that provides a sufficient basis for a reasonable inference . . .” 

Cottingham v. Sec’y of Health & Human Servs., 154 Fed. Cl. 790, 795 (2021) (citing 

Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 765 (4th Cir. 2021)). A 

reasonable basis may be demonstrated by circumstantial evidence. Cottingham, 971 

F.3d. at 1346. An affidavit constitutes objective evidence that must be considered in 

determining whether there is a reasonable basis when it contains testimony the witness 

is competent to give, but a special master is not required to find that the affidavit alone 

constitutes more than a mere scintilla of evidence. James-Cornelius v. Sec’y of Health

& Human Servs., 984 F.3d 1374, 1380-81 (Fed. Cir. 2021). Particularly, “medical 

records may serve as important corroborating evidence for evaluating testimony’s 

credibility”. James-Cornelius, 984 F.3d. at 1380. 

The Federal Circuit has also confirmed that a case can lose its reasonable basis 

as it proceeds. Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1376-77 
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(Fed. Cir. 1994). Thus, for example, a special master does not necessarily abuse his 

discretion in finding that an appeal of factual findings can lack a reasonable basis “in 

light of this court’s highly deferential standard of review.” R.K. v. Sec’y of Health & 

Human Servs., 760 Fed. Appx. 1010, 1013 (Fed. Cir. 2019); see also Phillips v. Sec’y of 

Health & Human Servs., 988 F.2d 111, 112 (Fed. Cir. 1993) (Plager, J., concurring) 

(noting that “the appropriateness of an award of fees related to the initial proceedings 

before the special master is an issue quite separate from the appropriateness of fees 

attributable to an appeal to this court.”) 

c. Party Contentions 

In his motion, petitioner requests that the Court grant reasonable compensation 

as allowed by the Vaccine Act. He did not advance any specific argument in favor of his 

request. (ECF No. 64.)

In response, respondent argued that petitioner lacked good faith to bring this 

claim. Specifically, he contended that “petitioner himself ought to have been able to 

cogently and clearly explain the factual circumstances of any alleged flu vaccination, 

which he failed to do, and the Special Master correctly determined that petitioner’s 

affidavit was neither reliable nor persuasive.” (ECF No. 66, p. 8.) 

Respondent also argued that this claim lacked a reasonable basis. Respondent 

stresses that “[g]eneral obfuscation in this record about the alleged dates and 

circumstances of vaccination additionally weigh against a finding of reasonable basis.” 

(Id. at 12.) Additionally, even if the claim initially had a reasonable basis, respondent 

further argues that the later motion for review lacked a reasonable basis, because it was 

“dependent on a clearly wrong, and indefensible, argument – that petitioners as a 

matter of law are entitled to a presumption in their favor of factual determinations.” (Id. 

at 13 (citing Motion for Review at 8-9; Opinion at 14-15 (rejecting petitioner’s 

argument)).)

Petitioner filed no reply.

d. Analysis of Good Faith and Reasonable Basis

There is no debate in this case that petitioner actually suffered GBS, the effects 

of which lasted for more than six months. And, even accounting for the inconsistency in 

his pleadings, if petitioner had demonstrated that he had received the flu vaccine at any 

point from mid- to late-October through November of 2013, he would have been 

afforded a presumption under the Vaccine Injury Table that his GBS was caused by his 

flu vaccine. 42 C.F.R. 100.3(a)(XIV). Rather, as noted above, the reasonable basis 

and good faith inquiries turn on whether petitioner presented “more than a mere scintilla 

of evidence” that he received a flu vaccine as alleged and whether that minimal 

evidence is compatible with an honest belief in his claim.

As observed in the decision dismissing this case, the fact of a vaccination need 

not itself be proven by medical records or medical opinion. See, e.g. Wonish v. Sec’y of 
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Health & Human Servs., No. 90-667V, 1991 WL 83959, at *4 (Fed. Cl. Spec. Mstr. May 

6, 1991) (stating with regard to § 300aa-13(a)(1) that “it seems obvious then that not all 

elements must be established by medical evidence” and that “vaccination is an event 

that in ordinary litigation could be established by lay testimony. Medical expertise is not 

typically required.”); see also Centmehaiey v. Sec’y of Health & Human Servs., 32 Fed. 

Cl. 612, 621 (1995), (noting that “the lack of contemporaneous documentary proof of 

vaccination, however, does not necessarily bar recovery.”), aff’d 73 F. 3d 381 (Fed. Cir. 

1995). The Federal Circuit has likewise confirmed in the reasonable basis context that, 

while a petitioner must provide objective evidence supporting the reasonable basis for 

the filing of the petition, such evidence may be circumstantial. Cottingham, 971 F.3d at 

1346. 

Examining the record of this case, the evidence falls far short of preponderant 

evidence that petitioner received the vaccine alleged to have caused his GBS for all the 

reasons discussed in the dismissal decision. There is, of course, no record of vaccine 

administration. Additionally, I concluded that neither petitioner’s history of inconsistently 

reporting the fact of a flu vaccination upon screening nor his facially unreliable affidavit 

provided any evidence that a vaccination had occurred. Accordingly, this same material 

likewise fails to contribute to petitioner’s showing of “more than a mere scintilla of 

evidence” that the alleged vaccination occurred as required by the reasonable basis 

inquiry. Nonetheless, in the course of his hospitalization for GBS, petitioner’s treating 

physicians made significant attempts to determine whether he had been vaccinated. 

After engaging in this effort, the hospital initially confirmed the lack of any vaccination 

record consistent with what he now recalls (Ex.4, p. 298); however, they later noted in 

his records on December 21, 2013, that he had been vaccinated (Ex. 9, p. 294) and 

appear to have accepted that as fact moving forward (Ex. 3, p. 18; Ex. 4, p. 525, 533; 

Ex. 9, pp. 7, 538). This December 21, 2013 notation likely derived from petitioner 

himself, though the source of the information is not actually indicated.2

Especially because the December 21st notation lacked any detail regarding the 

timing or other details of the purported vaccination, neither it nor the subsequent 

reliance on it, was persuasive or sufficient to provide preponderant evidence of 

vaccination when considered in the context of the record as a whole. It does, however, 

constitute at least some evidence of vaccination contemporaneous to petitioner’s period 

of treatment, which is when petitioner’s vaccination status was of heightened relevance 

to his treating physicians. Accord Cucuras v. Sec’y of Health & Human Servs., 993 

F.2d 1525, 1528 (Fed.Cir.1993) (explaining that contemporaneous medical records are 

2 In the dismissal decision, I explained that at the time of his December 6, 2013 neurology consultation, 

petitioner was intubated and sedated. (ECF No. 53, p. 4 (citing Ex. 9, pp. 215-16).) Accordingly, he was 

initially diagnosed with GBS without respect to whether he had a prior vaccination. The hospital 

subsequently sought to confirm a prior vaccination from the Carolinas Hospital on December 12, 2013 

and were informed by that facility that no vaccination record existed. (Id. (citing Ex. 4, pp. 307, 298).) 

However, by the time of the December 21, 2013 notation, petitioner was awake and communicating with 

his physicians. (Id. at 5 (citing Ex. 4, p. 279).) And, although the December 21st notation itself does not 

indicate the source of information, petitioner’s records later confirm as of January 18, 2014, that petitioner 

did report a prior vaccination. (Id. (citing Ex. 4, p. 253).)
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generally considered trustworthy because they “contain information supplied to or by 

health professionals to facilitate diagnosis and treatment of medical conditions.”) 

Notations that would not necessarily be persuasive in resolving a case on the 

merits under the preponderant evidence standard may still be probative with respect to 

the less onerous reasonable basis standard. Compare, e.g., James-Cornelius, 984 

F.3d at 1380 (finding the notation “??VAERS” might be probative of reasonable basis in 

suggesting a belief that symptoms may have been vaccine caused) and Stapleford v. 

Sec’y of Health and Human Servs., No. 03-234V, 2009 WL 1456441, at *17 n.24 (Fed. 

Cl. Spec. Mstr. May 1, 2009) (explaining in the context of preponderant evidence of 

causation-in-fact that a treating physician questioning a causal relationship “is quite 

different from an indication that such physician has reached a conclusion concerning a 

causal relationship”) (emphasis in original), aff’d, 89 Fed. Cl. 456 (2009). And, notably, 

a different petitioner was able, on a very different overall record, to preponderantly 

establish the fact of vaccination based on this type of indirect evidence from treatment 

records. See Gerard v. Sec’y of Health & Human Servs., No. 08-786V, 2013 WL 

6916045 (Fed. Cl. Spec. Mstr. Dec. 16, 2013), reconsideration granted 2014 WL 

4293342 (Fed. Cl. Spec. Mstr. Aug. 8, 2014). Accordingly, petitioner’s report of a prior 

vaccination to his care providers in the specific context of his treatment for GBS, while 

not providing preponderant evidence of vaccination on this record, provides more than a 

mere scintilla of evidence supporting his allegation.

This also speaks to petitioner’s “good faith” in initially bringing the claim. “Good 

faith” has previously been understood as requiring that “petitioner honestly believed that 

he had suffered a vaccine-related injury.” Turner, 2007 WL 4410030, at *5. Here, the 

medical records reflect a contemporaneous assertion by petitioner occurring in the 

context of treatment that he had been previously vaccinated, albeit without further detail. 

(Ex. 9, p. 294.) The records also appear to suggest that petitioner’s physicians 

cautioned him (in the context of avoiding future injury) regarding the general causal 

relationship between the flu vaccine and GBS during that same course of treatment. 

(Ex. 3, p. 18; Ex. 4, p. 525, 533; Ex. 9, pp. 7, 538). Given the inconsistency of 

petitioner’s recollection regarding the date of his vaccination and given that I concluded 

his specific affidavit account of the circumstances of vaccination was facially unreliable, 

respondent’s skepticism regarding petitioner’s good faith is understandable. However,

good faith is not completely coextensive with cogent recollection. Here, although 

petitioner clearly did not reliably articulate the circumstances of his alleged vaccination

years after the fact, there is evidence to suggest that petitioner likely first developed a 

belief that his GBS was vaccine-caused during his hospitalization, which was years

before he ultimately brought this claim. This is sufficient to support a showing of good 

faith regardless of the fact that petitioner was ultimately unable to reliably provide 

specific recollections to support that belief.

Respondent further argues that, even if petitioner did initially present this case in 

good faith and with a reasonable basis, his further pursuit of a motion for review lacked 

a reasonable basis. In that regard, it is well established in this Program that reasonable 

basis may dissipate as a case proceeds. Perreira, 33 F.3d at 1376-77. Moreover, prior 
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decisions going back decades have cautioned that “counsel who choose to pursue 

basically hopeless appeals of Program decisions, especially those turning on credibility 

determinations, should not be surprised to find that the Program will not compensate 

their time spent upon such appeals.” Johnson v. Sec’y of Health & Human Servs., 1992 

WL 247565, at *2 (Fed. Cl. Spec. Mstr. Sept. 14, 1992). However, there is no separate 

test to determine whether a motion for review was reasonable. Morse v. Sec’y of Health 

& Human Servs., 93 Fed. Cl. 780 (2010). Moreover, “[a]n appeal having a small chance 

for success is not for that reason alone frivolous.” Id. at 789 (quoting Finch v. Hughes 

Aircraft Co., 926 F.2d 1574, 1578 (Fed. Cir. 1991).) And, although appeals of fact 

findings face a deferential standard of review, such appeals are not per se

unreasonable even if it is possible for a special master to act within his discretion in 

denying fees and costs for such an appeal. R.K., 760 Fed. Appx. 1010, 1013. 

In this case, I share respondent’s concern that petitioner’s motion for review may 

have had significant shortcomings; however, given that the motion for review was a 

direct challenge to a case dispositive fact finding, and given that the record was not 

wholly without evidence supporting petitioner’s allegation, I do not view the fact finding 

itself (and the attendant standard of review) as a change in circumstances that would 

cause reasonable basis to dissipate. Rather, the shortcomings of petitioner’s motion for 

review are addressed below as a matter of the reasonableness of the hours billed to 

craft that motion.

III. Amount of the Award

a. Reasonableness of Rates and Hours Generally

The Federal Circuit has approved the lodestar approach to determine reasonable 

attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human 

Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008). This is a two-step process. Id. at 1347-

48. First, a court determines an “initial estimate . . . by ‘multiplying the number of hours 

reasonably expended on the litigation times a reasonable hourly rate.’” Id. (quoting 

Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may make an upward 

or downward departure from the initial calculation of the fee award based on specific 

findings. Id. at 1348. Special Masters have “wide latitude in determining the 

reasonableness of both attorneys’ fees and costs.” Hines v. Sec’y of Health & Human 

Servs., 22 Cl. Ct. 750, 753 (Fed. Cl 1991.) Moreover, Special Masters are entitled to 

rely on their own experience and understanding of the issues raised. Wasson v. Sec’y 

of Health & Human Servs., 24 Cl. Ct. 482, 483 (Fed. Cl. 1991) aff’d in relevant part, 988 

F.2d 131 (Fed.Cir.1993) (per curiam). 

In this case, I have reviewed the billing records and additional documentation 

submitted with petitioner’s motion. Upon my review, the overall amount sought in 

attorneys’ fees and costs is reasonable and the hourly rates and hours billed are 

reasonable and appropriate, except as discussed below. The requested costs are 

reasonable and sufficiently documented.
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b. Reasonableness of Hours Devoted to Motion for Review

Counsel has a duty to avoid frivolous litigation and should use “reasoned 

judgment in determining whether to . . . pursue a claim.” Murphy v. Sec’y of Health & 

Human Servs., 30 Fed. Cl. 60, 62 (1993), aff’d, 48 F.3d 1236 (Fed. Cir. 1995). “[T]he 

[Vaccine] Program’s interest in promoting attorney representation in vaccine cases, as 

contemplated by the attorneys’ fees provision of the statute, must be balanced carefully 

against the court’s examination of the reasonableness of the basis for bringing the 

vaccine petition.” Turner, 2007 WL 4410030, at *11. Although counsel has an “ethical 

obligation to be a zealous advocate,” that does not give counsel a “blank check to incur 

expenses without regard to the merits of [the] claim.” Perreira v. Sec’y of Health & 

Human Servs., 27 Fed. Cl. 29, 34 (1992). The duty to exercise billing judgment extends 

to work performed in the context of pursuing a motion for review. Morse, 93 Fed. Cl. at 

790-91.

Here, there were 14 hours of student work dedicated to substantive work on 

petitioner’s motion for review at a rate of $150 per hour. (ECF No. 64-1, p. 21.) 

Additionally, Ms. Gentry billed 5.5 hours of attorney time at a rate of $489 per hour to 

review that student work. (Id. at 10.) In total, the petitioner seeks reimbursement of 

$4,789.50 for attorneys’ fees dedicated to his motion for review. In the abstract, this 

appears to be a very reasonable sum. In the reality of this case, however, these hours 

were not all reasonably billed given the contents of the resulting motion.

The issue presented by this case – i.e., whether vaccination occurred as alleged 

– was a simple and discrete, yet indisputably case dispositive, factual issue. 

Accordingly, assessing the merits of a potential motion for review was unusually clearcut. Additionally, as noted in R.K., when a special master resolves a factual question, 

review of that determination is subject to a “highly deferential standard.” In fact, the 

Court’s Opinion and Order in this case stressed that “[c]learly it is not then the role of 

this court to reweigh the factual evidence . . . .” (ECF No. 58, p. 11 (quoting Dodd v. 

Sec’y of Health & Human Servs., 114 Fed. Cl. 43, 50 (2013).) Petitioner’s motion for 

review acknowledged the relevant standard of review. (ECF No. 55, p. 8.) Thus, 

petitioner was clearly aware that challenging the outcome of this case on review would 

require more than simply rearguing the underlying evidence. 

However, petitioner’s motion explicitly acknowledged that “[p]etitioner is not 

saying the Special Master failed to review the record, to the contrary, he reviewed the 

record extensively in his decision.” (ECF No. 55, p. 13.) Instead, respondent argues 

that petitioner’s motion for review urged a “clearly wrong, and indefensible” 

interpretation of his burden of proof. (ECF No. 66, p. 13.) Specifically, respondent 

suggests that petitioner argued in favor of a presumption in his favor regarding all 

factual issues.3 Even setting aside respondent’s own interpretation, the Court likewise 

3 Petitioner argued to the Court that “at every point where the evidence was equivocal, the Special 

Master, contrary to the law as discussed above, found against petitioner, rather than in favor of Petitioner. 
11

rejected petitioner’s argument as reflecting an impermissibly lowered burden of proof, 

observing that

Petitioner further asserts that the Special Master’s analysis of the record 

was flawed because, under the vaccine compensation system, “close calls 

regarding causation are resolved in favor of injured claimants.” Petitioner 

claims this rule should apply to facts, as well as causation. It is unlikely, 

however, that as part of the overall statutory National Childhood Vaccine 

Injury Act, failure to document vaccination is permissible to allow a petitioner 

to receive compensation. Whether or not a petitioner had received a 

vaccination is a statutory requirement under the Act. Respondent correctly 

states in its response to petitioner’s motion for review that preponderant 

proof is the requirement for proving the establishment of a critical fact 

necessary to be eligible for compensation.

(ECF No. 58, pp. 14-15 (internal citations omitted).)

Of greater concern to the undersigned, petitioner also argued against 

consideration of the inconsistency of factual representations in his pleadings due to his 

pro se status at the time of filing. (ECF No. 55, p. 16.) His motion for review stated of 

his initial pleadings that they were filed “when he was a pro se petitioner, residing in 

prison without access to any of his records, and more significantly, filing to preserve his 

statute of limitations. Mr. Matthews is not a lawyer, nor is he a particularly sophisticated 

Petitioner.” (Id.) Notably, however, although Ms. Gentry formally became counsel of 

record subsequent to the filing of the petition, the billing records submitted with the 

instant motion confirm that counsel began work on this case file in October of 2018, five 

months before the petition was filed. (ECF No. 64-1, p.4.) Moreover, the billing records 

specifically confirm that counsel was in direct contact with petitioner before any petition 

was filed and that counsel was specifically consulted with regard to preparing the 

petition for filing. (Id. at 5.) Thus, counsel’s billing records reveal in hindsight that 

petitioner’s motion for review was at substantial risk of misleading the Court.

Petitioner bears a burden of proof with respect to demonstrating both the 

existence of a reasonable basis and the reasonableness of hours expended. Here, 

petitioner opted not to file any reply after respondent asserted that petitioner’s motion 

for review lacked a reasonable basis. This is especially notable given that respondent 

specifically challenged petitioner’s legal argument as “indefensible.” (ECF No. 66, p. 

13.) Petitioner has offered no explanation for why his motion for review was reasonably 

undertaken or why his arguments were within the bounds of reasonable advocacy. In 

fact, petitioner advanced no argument at all in support of his request for attorneys’ fees 

and costs. 

Mr. Matthews is also not arguing that a Special Master must always take Petitioner’s word or rule in favor 

of Petitioner – but when there is evidence on both sides, as there is here, that the intent of the Program 

with respect to ‘close-calls’ directs the Special Master to rule for petitioners.” (ECF No. 55, p. 13.) 
12

Thus, while petitioner’s motion for review did not per se lack a reasonable basis, 

review of the substance of that motion reveals that much of the time spent crafting the 

motion cannot be considered to be time reasonably spent given the specific arguments 

advanced. While the errors above may seem more forgivable when originating within 

student work, the fact that they were ultimately presented to the court calls into question 

Ms. Gentry’s supervisory review. In light of the specific student/supervising attorney 

context, reduction is made as follows: None of the 5.5 hours billed by Ms. Gentry as 

supervising attorney are reimbursed and the student attorney hours are reduced by 

50%. This results in a reduction of $3,739.50.

IV. Conclusion 

For the reasons set forth above, petitioner established a reasonable basis for the 

initial filing of his petition as required for an award for attorneys’ fees and costs. 

Accordingly, an award for attorneys’ fees and costs is GRANTED. However, attorneys’ 

fees and costs are awarded in the reduced amount of $33,556.18 for all the reasons 

discussed above. 

Accordingly, I award a total of $33,556.18 as a lump sum in the form of a 

check payable to petitioner and his counsel, Renee Gentry, Esq.

The clerk of the court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice 

renouncing the right to seek review.