United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MICHAEL STEPHEN SHAW, 

Petitioner-Appellant, 

v. 

SECRETARY OF HEALTH AND HUMAN 

SERVICES, 

Respondent-Appellee. 

__________________________ 

2009-5117 

__________________________ 

Appeal from the United States Court of Federal 

Claims in 01-VV-707, Judge Mary Ellen Coster Williams. 

___________________________ 

Decided: June 24, 2010 

___________________________ 

KEVIN P. CONWAY, Conway, Homer & Chin-Caplan, 

P.C., of Boston, Massachusetts, argued for petitionerappellant. On the brief was RONALD C. HOMER. 

DARRYL R. WISHARD, Trial Attorney, Torts Branch, 

Civil Division, United States Department of Justice, of 

Washington, DC, argued for respondent-appellee. On the 

brief were TONY WEST, Assistant Attorney General, 

TIMOTHY P. GARREN, Director, MARK W. ROGERS, Deputy 

Director, and CATHARINE E. REEVES, Assistant Director. 
SHAW v. HHS 2

__________________________ 

Before MOORE and PLAGER, Circuit Judges.

∗

 

MOORE, Circuit Judge. 

Mr. Michael Shaw applied for interim attorneys’ fees 

and costs while pursuing a cause of action for compensation under the Vaccine Act, 42 U.S.C. § 300aa-1 et seq. 

The Special Master awarded Mr. Shaw the undisputed 

portion of his request and deferred consideration of the 

remaining fees and costs until the submission of a final 

petition for fees and costs. Shaw v. Sec’y of HHS, No. 01-

707, 2009 WL 1010058, at *3 (Fed. Cl. Mar. 27, 2009). 

Mr. Shaw sought review in the United States Court of 

Federal Claims, and that court dismissed, concluding that 

it lacked jurisdiction to review an interim fee award. For 

the reasons discussed below, we reverse. 

BACKGROUND

Mr. Shaw petitioned for compensation under the Vaccine Act, asserting that he suffered an inflammatory 

polyneuropathy as a result of the Hepatitis B vaccine. 

Although Mr. Shaw filed his petition in 2001, his case was 

stayed pending an omnibus proceeding involving numerous Hepatitis B cases. The stay was lifted in 2006, at 

which point the parties filed “a substantial volume of 

medical records.” Shaw v. Sec’y of HHS, 88 Fed. Cl. 463, 

463 (2009). On March 12, 2008, the Special Master 

conducted an entitlement hearing. The Special Master 

heard testimony from three witnesses, including Dr. 

 ∗

 Paul R. Michel, who retired from the position of 

Chief Judge on May 31, 2010, did not participate in this 

decision. 
3 SHAW v. HHS

Sherri Tenpenny, whom Mr. Shaw had retained as an 

expert. 

After the entitlement hearing, but before the Special 

Master rendered a decision on the merits, Mr. Shaw filed 

an Application for Interim Fees and Costs, seeking 

$142,778.50 for attorneys’ fees and $32,311.45 in costs. 

Shaw, 2009 WL 1010058, at *1. The government challenged many of Mr. Shaw’s requests as “outrageously 

excessive and unreasonable.” Id. at *2. The Special 

Master awarded Mr. Shaw the undisputed portion of his 

request, which amounted to $12,632.59, about 7% of the 

total amount requested. Id. at *3. The Special Master 

deferred consideration of the disputed fees and costs 

“until a final petition for fees and costs is submitted.” Id. 

Mr. Shaw moved for reconsideration of the decision. 

The Special Master denied the motion, explaining that 

she was preparing a ruling on entitlement and that the 

reasonableness of certain requests would be best considered in connection with her evaluation of the merits of the 

case. Specifically, the Special Master explained that a 

“significant issue in the entitlement ruling is whether Dr. 

Tenpenney, as an osteopathic doctor and one of petitioner’s many treating physicians, was qualified to opine 

on the cause of petitioner’s neurologic injury.” Shaw, No. 

01-707V, D.I. 93, *2 (Fed. Cl. May 1, 2009). The Special 

Master stated that “[t]he transcript of the entitlement 

hearing and the interim fee petition reflect many hours of 

research by Dr. Tenpenney in preparing an opinion letter 

in this case.” Id. The Special Master concluded that 

“[t]he reasonableness of Dr. Tenpenney’s extensive research is best considered in connection with the undersigned’s evaluation of the petitioner’s entitlement claim.” 

Id. at *2-3. 
SHAW v. HHS 4

Mr. Shaw petitioned for review of the Special Master’s 

decision. The Court of Federal Claims concluded that it 

lacked jurisdiction to review an interim decision on attorneys’ fees and costs. Shaw, 88 Fed. Cl. 463. The court 

reasoned that under 42 U.S.C. § 300aa-12, it only had 

jurisdiction to review a “final decision” of the Special 

Master. Shaw, 88 Fed. Cl. at 465. The court stated that 

“[b]oth the Federal Circuit and the Court of Federal 

Claims have interpreted Section 12(e)(3) to mean that 

only a ‘final decision’ by the Special Master—a decision 

that resolves the ultimate issues in the case—is appropriate for review by this court.” Id. Because there was no 

final decision on the underlying merits of the petition, the 

court concluded it did not have jurisdiction to review the 

Special Master’s decision on attorneys’ fees. Id. Therefore, the Court of Federal Claims dismissed the petition 

for lack of jurisdiction. Mr. Shaw appeals. We have 

jurisdiction under 42 U.S.C. §§ 300aa-12(f). 

DISCUSSION 

We review de novo a decision by the Court of Federal 

Claims concerning its jurisdiction to review a decision of 

the Special Master. Widdoss v. Sec’y of HHS, 989 F.2d 

1170, 1174 (Fed. Cir. 2003). 

On appeal, Mr. Shaw argues that the plain language 

of the Vaccine Act establishes jurisdiction. Specifically, 

Mr. Shaw cites 42 U.S.C. § 300aa-12(e), which provides 

the Court of Federal Claims with jurisdiction to review 

“decisions” by special masters. Mr. Shaw asserts that it 

would be improper to read the word “final” into the statute. Moreover, Mr. Shaw argues that holding that interim fee denials are not reviewable would effectively 

eliminate the right to interim fees recognized by this 

court in Avera v. Secretary of the Department of Health 
5 SHAW v. HHS

Human Services, 515 F.3d 1343, 1352-53 (Fed. Cir. 2008). 

Finally, Mr. Shaw asserts that Vaccine Rule 13 expressly 

provides for review of interim fee awards and thus establishes jurisdiction. See Vaccine Rules of the United States 

Court of Federal Claims, app. B, R. 13(b) (as amended 

July 13, 2009) (Vaccine Rules). 

The government asserts that the Vaccine Act only 

provides jurisdiction to review final decisions and that a 

decision on interim fees is not final and appealable. The 

government argues that this lack of review does not 

render Avera meaningless because special masters will 

continue to award interim fees, regardless of whether 

interim decisions are appealable. The government further argues that allowing appeals of interim fee awards 

would impede the goal of efficient resolution of claims. 

Finally, it asserts that Vaccine Rule 13 cannot create 

jurisdiction where none otherwise exists. 

In Avera, we held that the Vaccine Act permits the 

award of interim fees and costs, rejecting the government’s argument that a fee award is only permissible 

after judgment under § 300aa-15. Avera, 515 F.3d at 

1350-51. As this court explained, there is even more 

reason to award interim fees in vaccine cases because 

there is no prevailing party requirement. Id. at 1352. 

“[T]he Vaccine Act merely requires parties who do not 

prevail to show that their claim was brought ‘in good 

faith’ and ‘with a reasonable basis.’” Id. (quoting 42 

U.S.C. § 300aa-15(e)(1)). We further explained: 

A special master can often determine at an early 

stage of the proceedings whether a claim was 

brought in good faith and with a reasonable basis. 

Moreover, as we noted in Saunders, one of the underlying purposes of the Vaccine Act was to en-
SHAW v. HHS 6

sure that vaccine injury claimants have readily 

available a competent bar to prosecute their 

claims. 25 F.3d at 1035. Denying interim fee 

awards would clearly make it more difficult for 

claimants to secure competent counsel because delaying fee payments decreases the effective value 

of awards. . . . Interim fees are particularly appropriate in cases where proceedings are protracted and costly experts must be retained. 

Id. at 1352. Where the claimant establishes that the cost 

of litigation has imposed an undue hardship and that 

there exists a good faith basis for the claim, it is proper 

for the special master to award interim attorneys’ fees. 

For purposes of jurisdiction under 42 U.S.C. § 300aa12, a decision on attorneys’ fees and costs is a decision on 

compensation. Subsection 12(d)(3)(A) provides the Court 

of Federal Claims with jurisdiction to review decisions 

under the Vaccine Act. 42 U.S.C. § 300aa-12(d)(3)(A). 

Specifically, this subsection provides that “[a] special 

master to whom a petition has been assigned shall issue a 

decision on such petition with respect to whether compensation is to be provided under the Program and the 

amount of such compensation,” and it further provides 

that “[t]he decision of the special master may be reviewed 

by the United States Court of Federal Claims in accordance with subsection (e) of this section.” Id. Thus, the 

Court of Federal Claims has jurisdiction to review a 

decision by the special master concerning compensation. 

The Vaccine Act indicates that compensation includes 

attorneys’ fees and costs: 
7 SHAW v. HHS

In awarding compensation on a petition filed under section 300aa-11 of this title the special master or court shall also award as part of such 

compensation an amount to cover-- 

(A) reasonable attorneys’ fees, and 

(B) other costs, 

incurred in any proceeding on such petition. If 

the judgment of the United States Court of Federal Claims on such a petition does not award 

compensation, the special master or court may 

award an amount of 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 for which the petition was brought. 

42 U.S.C. § 300aa-15(e)(1). Thus, the Vaccine Act uses 

the term compensation to refer both to compensatory 

damages (such as payment for injury) and attorneys’ fees 

and costs. See Saunders v. Sec’y of HHS, 25 F.3d 1031, 

1034-35 (Fed. Cir. 1994) (noting the dual use of the term 

“compensation” in the Vaccine Act and determining that 

42 U.S.C. § 300aa-15(f) prohibits the payment of compensatory damages when the petitioner declines to accept the 

judgment, but it allows the payment of attorneys’ fees). 

Consistent with this interpretation, this court and the 

Court of Federal Claims have recognized their jurisdiction 

to review a decision on fees, independent from a decision 

on the merits, where the decision on fees issued along 

with or after a decision on the merits. See, e.g., Avera, 
SHAW v. HHS 8

515 F.3d 1343; Rodriguez v. Sec’y of HHS, 91 Fed. Cl. 453 

(2010); Doe v. Sec’y of HHS, 89 Fed. Cl. 661 (2009). 

The sole question on appeal is whether the Court of 

Federal Claims has jurisdiction to review an interim fee 

decision prior to the decision on the merits of the underlying claim. We conclude that it does. The government 

asserts that we previously interpreted § 300aa-12(e) to 

“apply only to ‘final’ decisions of the special master that 

conclude the proceeding,” citing Widdoss, 989 F.2d at 

1175. Gov’t Br. at 4, 12. On the contrary, we have never 

interpreted § 300aa-12(e)(3) to require a final decision 

concluding the proceedings or resolving the ultimate issue 

in the case. In Widdoss, we concluded that the 30-day 

time period in which to file for review in 42 U.S.C. 

§ 300aa-12(e) was jurisdictional in nature. 989 F.2d at 

1175, 1177. We further concluded that the clock began to 

run on the date that the special master issued its decision, rather than on the date that a 14-day temporary 

suspension of the proceeding ended. Id. We did not 

restrict jurisdiction to decisions resolving the ultimate 

issues of the case. 

The Special Master’s grant or denial of interim attorneys’ fees is a decision on compensation and as such it is 

reviewable by the Court of Federal Claims under § 12(e). 

Moreover, the Special Master’s decision on interim attorneys’ fees is a final decision on the issue of interim fees. 

There will be no subsequent decision on “interim fees.” 

And if the interim fee denial cannot be reviewed until 

after a decision on the merits, it is no longer an interim 

fee. Foreclosing review of a denial of interim fees is 

tantamount to a denial of such fees. 

The Special Master’s interim fee decision in this case 

indicates: “in the absence of a motion for review filed 
9 SHAW v. HHS

under Appendix B of the Rules of the United States Court 

of Federal Claims, the Clerk of the Court shall enter 

judgment in petitioner’s favor for $12,632.59 in interim 

attorney’s fees, attorney’s costs, and petitioner’s costs.” If 

motion for review of the interim decision had not been 

filed within 30 days, judgment would have been entered 

in the amount of $12,632.59 for petitioners, and review 

would no longer exist under § 12(e) at the Court of Federal Claims for the judgment. It would seem strange 

indeed to conclude that the government had to seek 

review of a grant of interim fees in the Court of Federal 

Claims within 30 days of the decision of the Special 

Master, but claimants could not seek review for denials 

until after the decision on the merits. 

Consistent with our holding today, the Vaccine Rules 

recognize that a decision on interim fees constitutes a 

separate and appealable decision. The Vaccine Rules are 

adopted by the Court of Federal Claims and “govern all 

proceedings before the United States Court of Federal 

Claims pursuant to the National Childhood Vaccine 

Injury Act, as amended, 42 U.S.C. §§ 300aa-1 to -34 

(Vaccine Act).” Vaccine Rules, app. B, R. 1(a) (as revised 

and reissued May 1, 2002, and as amended July 13, 2009). 

The government is certainly correct that the Court of 

Federal Claims’ Vaccine Rules cannot create jurisdiction 

where none exists. However, Vaccine Rule 13(b), which 

was amended following our decision in Avera, recognizes 

that “[t]he decision of the special master on the fee request—including a request for interim fees—constitutes a 

separate decision for purposes of the Vaccine Rules 11, 18, 

and 23.” Rule 23 explains that “[t]o obtain review of the 

special master’s decision, a party must file a motion for 

review with the clerk within 30 days after the date the 

decision is filed.” Our treatment of the interim fee decision as reviewable seems at least consistent with these 
SHAW v. HHS 10

Vaccine Rules acknowledging that the interim fee decision 

is a separate decision for which review must be sought 

within 30 days of the decision. In fact, these rules could 

be interpreted as foreclosing review of the “separate 

decision” on interim fees if it is not sought within 30 days 

after the decision is filed. 

In concluding that it lacked jurisdiction, the Court of 

Federal Claims referred to “numerous appellate decisions 

holding that a tribunal’s decision on interim attorney’s 

fees is not ‘final’ or appealable except under very limited 

circumstances not present here.” Shaw, 88 Fed. Cl. at 

465. However, the cases cited by the court involved 

causes of action in which only the prevailing party may 

receive attorneys’ fees. See In re Diet Drugs Prods. Liab. 

Litig., 401 F.3d 143 (3d Cir. 2004) (interim fee award in 

products liability action); Nosik v. Singe, 40 F.3d 592 (2d 

Cir. 1994) (attorneys’ fees governed by 42 U.S.C. § 1988); 

Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988) 

(attorneys’ fees governed by 5 U.S.C. § 552(a)(4)(e)); Ruiz 

v. Estelle, 609 F.2d 118 (5th Cir. 1980) (attorneys’ fees 

governed by 42 U.S.C. § 1988).1 In these cases, the 

party’s ultimate entitlement to fees was tied to the outcome of the case.2 In contrast, under the Vaccine Act, 

 1 The court also cited Banks v. Office of the Senate 

Sergeant-at-Arms and Doorkeeper of the United States 

Senate, 471 F.3d 1341 (D.C. Cir. 2006), in which the court 

awarded fees as a discovery sanction under Federal Rule 

of Civil Procedure 37. 

2 Notably, in all but one of the cases cited by the 

court, the lower court awarded attorneys’ fees to the 

plaintiff prior to deciding the merits of the case. Banks, 471 F.3d at 1342; In re Diet Drugs, 401 F.3d at 145; 

Rosenfeld, 859 F.2d at 719; Ruiz, 609 F.2d 118. Only one 

case involved the denial of a request for interim fees. In 

that case, the court determined that the plaintiff “failed to 

pose a serious question on the merits of her claim for a 
11 SHAW v. HHS

there is no prevailing party requirement. A petitioner for 

compensation under the Vaccine Act is entitled to attorneys’ fees as long as he or she brings the action in good 

faith and with a reasonable basis, regardless of the ultimate outcome of the case. 42 U.S.C. § 300aa-15(e)(1). “A 

special master can often determine at an early stage of 

the proceedings whether a claim was brought in good 

faith and with a reasonable basis.” Avera, 515 F.3d at 

1352. We note, however, that “[t]he determination of the 

amount of reasonable attorneys’ fees is within the special 

master’s discretion.” Saxton v. Sec’y of HHS, 3 F.3d 1517, 

1520 (Fed. Cir. 1993). The special master may determine 

that she cannot assess the reasonableness of certain fee 

requests prior to considering the merits of the vaccine 

injury claim. We determine today only that the Court of 

Federal Claims has jurisdiction to review the merits of 

the interim fee decision. We leave to the Court of Federal 

Claims in the first instance the determination of whether 

the special master abused her discretion in deferring the 

decision on the disputed fees in this case. 

The government argues that appellate review of interim fee awards is “wholly inconsistent with the legislative intent of resolving Vaccine Act petitions quickly and 

efficiently.” Gov’t Br. 17-18. The government explains 

that “time consuming appeals from interim fee decisions 

would only add to the delay already caused by the special 

master’s initial resolution of the request for interim fees.” 

Id. at 18. The government’s argument seems to be more 

of an attack on the availability of interim fees than their 

reviewability. The Court of Federal Claims’ review of an 

interim fee award in no way delays the Special Master’s 

resolution of the merits of the Vaccine Act claim. There 

 

permanent injunction, let alone that she will likely prevail on that claim.” Nosik, 40 F.3d at 596. 
SHAW v. HHS 12

would be no stay of the merits pending review of the 

interim fee decision. 

The government acknowledges that interim fees and 

costs amounting to more than $5,750,000 have been 

awarded in at least 30 cases since Avera was decided in 

2008. Id. at 21. The government argues that there is no 

need for review because substantial interim fees are being 

awarded even in the absence of immediate review of those 

awards. Id. at 22. We do not agree. Because this court 

has not yet ruled on whether there exists jurisdiction to 

review interim fees, we cannot know the impact review, or 

lack thereof, would have on interim fee decisions. Moreover, the magnitude and frequency of the awards actually 

support the notion that review ought to exist. Review 

would, of course, exist for both parties. The government 

could seek review of the grant of an award which it believes was improper in much the same way a claimant 

could seek review of a denial. 

Here, the Special Master awarded Mr. Shaw the undisputed portion of his request for attorneys’ fees and 

costs and deferred consideration of the disputed portion of 

his request. Deferring consideration of attorneys’ fees 

and costs until a decision on the merits is effectively a 

denial of interim fees. We agree with Mr. Shaw that if 

interim fee awards are not independently reviewable, our 

holding in Avera, 515 F.3d 1343, would be rendered 

meaningless. We conclude that 42 U.S.C. § 12(e) confers 

jurisdiction on the Court of Federal Claims to review 

interim attorney fee decisions. An interim attorney fee 

decision is a separate decision on compensation and as 

such is reviewable even when that decision issues prior to 

a decision on the merits. 
13 SHAW v. HHS

CONCLUSION

For the foregoing reasons, we reverse. 

REVERSED