In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-1624V

Filed: June 13, 2019

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ROBERT G. CANADY and SITA S. 

CANADY as parents and legal 

representatives of their Minor son, A.G.C.

Petitioners,

v.

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Respondent.

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UNPUBLISHED

Decision on Interim Attorneys’ Fees and 

Costs; Denial

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Ramon Rodriguez III, Esq., Sands Anderson PC, for petitioners.

Robert Coleman III, Esq., U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON INTERIM ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

On October 19, 2018, Robert and Sita Canady (“petitioners”) filed a petition for 

compensation under the National Vaccine Injury Compensation Program2on behalf of their minor 

child, A.G.C. See Petition (“Pet.”), ECF No. 1. Petitioners allege that A.G.C. developed 

neurological symptoms, encephalopathy, and a seizure disorder as a result of receiving an 

 

1 Although this Decision has been formally designated “unpublished,” it will nevertheless be posted on the 

Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-

347, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This means the Decision 

will be available to anyone with access to the internet. However, the parties may object to the Decision’s 

inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party 

has fourteen days within which to request redaction “of any information furnished by that party: (1) that is 

a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes 

medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of 

privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public. Id.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease 

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012).
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influenza vaccination on October 20, 2015. Id. at 1, 16. Petitioners have requested an award of 

interim attorneys’ fees and costs. Petitioners’ Motion is hereby DENIED.

I. Procedural History

The petition was filed on October 19, 2018. ECF No. 1. Petitioners filed affidavits, medical 

records, and a VAERS report on November 12, 2018. Petitioner’s Exhibits (“Pet. Ex.”) 1-10, ECF 

No. 7; Pet. Ex. 11-20, ECF No. 8; Pet. Ex. 21-22, ECF No. 9. Petitioners filed additional medical 

records and a Statement of Completion on December 20, 2018. Pet. Ex. 23, ECF No. 10; Statement 

of Complete, ECF No. 11. 

Respondent filed a status report on February 1, 2019, indicating that the medical records 

appeared to be complete, and advising that respondent intended to contest entitlement. ECF No. 

13. 

Respondent filed his Rule 4(c) Report (“Resp. Rpt.”) on April 2, 2019, indicating that this 

matter was not appropriate for compensation. Resp. Rpt., ECF No. 14. Respondent noted that

A.G.C. had received yearly influenza vaccinations for five years without event prior to his receipt 

of the allegedly causal influenza vaccination. Id. at 2. Respondent pointed out that A.G.C. has a 

family history of seizures; additionally, one of A.G.C.’s treating physicians wrote, “[patient] has 

5 brothers – almost all experienced viral illness last summer and all have experienced some 

myoclonic jerks since then.” Id. at 5, 7 (citing Pet. Ex. 6 at 437). ... Petitioners were ordered to 

file a status report by May 2, 2019, indicating how they intended to proceed. Non-PDF Order,

dated Apr. 2, 2019. If deemed appropriate, petitioners were to file an expert report which complied 

with Althen and addressed all of the issues raised in respondent’s Rule 4(c) Report by July 1, 2019. 

Id.

Petitioners filed additional medical records on April 3, 2019. Pet. Ex. 24-25, ECF No. 15. 

They filed a status report on May 2, 2019, stating their intention to file an expert report in support 

of their claim by July 1, 2019. ECF No. 17.

On May 10, 2019, petitionersfiled the instant Motion for Interim Attorneys’ Fees and Costs

(“Mot. Int. Fees”). ECF No. 18. Petitioners request attorneys’ fees in the amount of $10,484.10, 

and attorneys’ costs in the amount of $2,280.40, for a total amount of $12,764.50. Id. at 10, 14.

Petitioners explained that they retained Dr. Rodriguez as counsel on November 16, 2016, while he 

was employed with Rawls McNelis, which is now doing business as Rawls Law Group (“RLG”). 

Mot. Int. Fees at 2. On July 14, 2017, Dr. Rodriguez left RLG to transition his practice to Sands

Anderson, PC, where he is currently employed. Id. at 3. In the instant motion, petitioners request 

reimbursement of attorneys’ fees and costs incurred while Dr. Rodriguez was employed by RLG. 

Id. Petitioners submitted that, “[b]ecause RLG employees are no longer involved in this case[,] 

RLG is experiencing financial hardship and delay for work billed by Dr. Rodriguez...”. Id. at 7. 

Petitioners further submitted that “they meet the criteria for interim fees and costs requested herein 

due to the almost three year delay and hardship RLG has and would continue to otherwise face...”. 

Id. at 14.
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On May 23, 2019, respondent filed a response to petitioner’s motion. Response, ECF No. 

20. Respondent “defers to the Special Master to determine whether or not petitioner met the legal 

standard for an interim fees and costs award” as well as whether petitioner has met “the statutory 

requirements for an award of attorney’s fees and costs...particularly whether there is a reasonable 

basis for the claim.” Response at 2. Respondent provided no specific objection to the amount 

requested or hours worked, but instead, “respectfully recommend[ed] that the Special Master 

exercise her discretion regarding petitioners’ request for an interim award of attorneys’ fees and 

costs.” Id. at 3.

Petitioner did not file a reply. This matter is now ripe for decision.

II. Applicable Law and Analysis

The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” 

§ 15(e)(1). If a petitioner succeeds on the merits of his or her claim, he or she is entitled to an 

award of reasonable attorneys’ fees and costs. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 

(2013). However, a petitioner need not prevail on entitlement to receive a fee award as long as the 

petition was brought in “good faith” and there was a “reasonable basis” for the claim to proceed. 

§ 15(e)(1).

Special masters have discretion to award interim fees while the litigation is ongoing if “the 

cost of litigation has imposed an undue hardship” and there is “a good faith basis for the claim.” 

Shaw v. Sec’y of Health & Human Servs., 609 F.3d 1372, 1375 (Fed. Cir. 2010); see Avera v. Sec’y 

of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). The court in Avera held that 

interim fees may be awarded “in appropriate circumstances.” 515 F.3d at 1351. The court then 

listed some circumstances—cases involving “protracted” proceedings and “costly experts”—in 

which it would be “particularly appropriate” to award interim fees. Id. at 1352. But “the Federal 

Circuit in Avera . . . did not enunciate the universe of litigation circumstances which would warrant 

an award of interim attorney’s fees,” Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148,

154 (2012), and “special masters [retain] broad discretion in determining whether to award” them, 

Al-Uffi ex rel. R.B. v. Sec’y of Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5 

(Fed. Cl. Spec. Mstr. Sept. 30, 2015). In making this determination, “the special master may 

consider any of the unique facts of a case.” Rehn v. Sec’y of Health & Human Servs., 126 Fed. Cl. 

86, 94 (2016).

Interim fees are the exception rather than the rule; indeed, “there is not a presumption of 

entitlement to interim fees.” McKellar v. Sec’y of Health & Human Servs., 101 Fed. Cl. 297, 300 

(2011). Under the circumstances of this case, interim fees are not warranted. There are neither 

“protracted proceedings” nor “costly experts,” and petitioners have not made a “special showing” 

that an award of interim fees and costs is necessary to avoid undue hardship.

Petitioners’ Motion cites the “three year delay” in the proceedings as justification for an 

award of interim fees; however, this matter has been pending for less than one year. While 

petitioners retained counsel on November 16, 2016, the petition was not filed until October 19, 

2018, nearly two years later. Additionally, the overall amount of fees requested does not appear to 

be unduly burdensome, RLG did not incur expert costs on the petitioners’ behalf, and any costs 
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going forward will be paid by Dr. Rodriguez’s current firm, Sands Anderson. Furthermore, counsel 

has not withdrawn from representing the petitioners in this matter, but merely changed law firms. 

Dr. Rodriguez can protect the fees and costs incurred by his prior firm by including them in a 

subsequent application for fees and costs, submitted at a more appropriate time. As petitioners do 

not meet any of the circumstances typically invoked in awarding interim fees, I find that interim 

fees are not appropriate at this juncture. 

Based on the foregoing, petitioner’s Motion for Interim Attorneys’ Fees and Costs is 

DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Decision.

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IT IS SO ORDERED.

s/ Mindy Michaels Roth 

Mindy Michaels Roth 

Special Master

 

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a notice 

renouncing the right to seek review.