In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 16-565V 

(Not to be Published) 

* * * * * * * * * * * * * * * * * * * * * * * * * Special Master Corcoran 

HUNTER HORSEY, on behalf of, * 

G.H., a minor child, * 

 * Filed: July 12, 2017 

 Petitioner, * 

 v. * Attorney’s Fees and Costs; 

 * Reasonable Basis; Insufficient 

SECRETARY OF HEALTH * Supporting Documentation to 

AND HUMAN SERVICES, * Ascertain Reasonable Basis 

 * 

 Respondent. * 

 * 

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

Isaiah R. Kalinowski, Maglio, Christopher and Toale, PA, Washington, DC, for Petitioner. 

Camille M. Collett, U.S. Dep’t of Justice, Washington, DC for Respondent. 

DECISION DENYING MOTION FOR ATTORNEY’S FEES AND COSTS1

On May 11, 2016, Hunter Horsey (“Petitioner”) filed a petition on behalf of his minor 

child, G.H., seeking compensation under the National Vaccine Injury Compensation Program, 

(“the Vaccine Program”)2

. Petitioner alleged that G.H. was injured by receipt of the DiphtheriaTetanus-acellular Pertussis, measles-mumps-rubella, varicella, pneumococcal conjugate, Hepatitis 

                                                            

1

 Although this decision has been formally designated “not to be published,” it will nevertheless be posted on the 

United States Court of Federal Claims’s website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 

(2012). This means the ruling will be available to anyone with access to the internet. As provided by 42 U.S.C. § 

300aa-12(d)(4)(B), 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 in its present form. Id. 

2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act 

of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)). 

References herein to sections of the Vaccine Act shall omit the statute’s prefix. 
2 

B, and polio vaccines on May 6, 2013, and July 8, 2013. Petitioner never filed any medical records 

in this case, and then on October 6, 2016, moved for dismissal of his claim pursuant to Rule 21(a) 

(ECF No. 8). I subsequently issued an Order concluding proceedings on October 7, 2016. ECF 

No. 9. 

Petitioner has now filed a motion for final attorney’s fees and costs, requesting a combined 

amount of $9,385.09. Motion for Attorney’s Fees and Costs, dated April 5, 2017 (ECF No. 11) 

(“Fees App.”). Respondent has opposed the fees motion, arguing that there is insufficient 

documentation to judge the claim’s reasonable basis, as no records or other supporting materials 

have ever been filed. For the reasons stated below, I hereby DENY Petitioner’s request for fees 

and costs. 

Background 

At the very outset of the case’s initiation in May 2016, Petitioner acknowledged that the 

claim was being filed on the eve of expiration of the Vaccine Act’s three-year limitations period 

(since it alleged a May 2013 vaccination as partially causal of the complained-of injuries), and was 

therefore based solely on Petitioner’s own representations rather than medical records or other 

documentation. Pet. at 1; Section 16(a)(2). Counsel thereafter received and reviewed the relevant 

medical records, although they were not filed. After consultation with Petitioner, it was determined 

that the claim was not viable, and therefore Petitioner requested its dismissal within five months 

of the petition’s filing. 

Six months later, Petitioner filed the present motion for final attorney’s fees and costs. See 

generally Fees App. In it, he requests an award of $9,385.09 in attorney’s fees and costs, 

representing $8,940.50 in fees, plus $444.59 in costs. The fees motion was not accompanied by 

any of the underlying records relevant to the claim, however. Respondent opposed the fees 

application on April 14, 2017. ECF No. 12 (“Opp.”). Respondent argues that the claim’s 

reasonable basis (a prerequisite for any fees award in an unsuccessful case) cannot be ascertained 

based on the existing record – which is completely devoid of medical records or proof of 

vaccination – and therefore the fees request should be denied. Opp. at 2. 

Petitioner thereafter filed a reply on April 24, 2017. ECF No. 13 (“Reply”). Petitioner 

maintains that denying fees in cases similar to the one at issue would result in petitioners being 

denied experienced Vaccine Program lawyers, as there is no incentive for attorneys to represent 

clients in cases filed close to the limitations deadline when there is a risk of not being paid for their 

work, and would therefore go against Vaccine Program policy interests. Reply at 3. Petitioner 

notes further that there were extenuating circumstances that delayed analyzing the case’s viability, 

such as the need to determine who could act as G.H.’s representative (given an underlying custody 

suit). Id. at 4. Counsel thereafter acted diligently to review the relevant documents, promptly 
3 

requesting dismissal after that review was complete. Id. at 4-5. Like the fees motion, the Reply 

also did not include any records relevant to the case’s basis. 

Following these filings, I held a status conference on May 8, 2017, at which I urged the 

parties to resolve the fees dispute on their own, but they were unsuccessful. Thus, on May 31, 

2017, I issued an order stating that I could not render a reasonable basis assessment on the existing 

record (which was nonexistent). ECF No. 15. I ordered Petitioner to file documents sufficient to 

substantiate the claim’s reasonable basis. Id. 

Petitioner did not do so. Instead, on June 16, 2017, Petitioner filed a five-page affidavit 

from his attorney, Mr. Isaiah Kalinowski, Esq. Ex. 6 to Fees App. (ECF No. 16) (“Kalinowski 

Aff.”). Mr. Kalinowski’s affidavit reiterates, albeit in greater detail, points previously made about 

the case – that Petitioner contacted him at the end of the statute of limitations period, that Petitioner 

appeared to be sincere in his recollection of the vaccination and G.H.’s subsequent injury (and 

hence acted in good faith), and that counsel undertook a full analysis of the claim after medical 

records were obtained. Kalinowski Aff. at 1-3. 

The affidavit ventures an explanation for the failure to file medical records, attributing it 

in part to a custody dispute involving G.H. Kalinowski Aff. at 3. Because of the “sensitive nature” 

of that dispute, and after Petitioner was informed that the claim was likely not viable, Petitioner 

asked for “expeditious dismissal” in order to evade a written decision that could disclose facts 

relevant to G.H.’s medical condition. Id. at 4. The affidavit states that were I to review the relevant 

records, I would concur in counsel’s assessment that the claim was not viable, but that these records 

do not bear on the claim’s reasonable basis “during the interval prior” to their being obtained. Id. 

at 4 ¶ 17. The affidavit provides no direct justification under the Act or Vaccine Rules for refusing 

to file the relevant records, but indicates that based upon the “expressed instructions” of Petitioner 

they shall remain unfiled unless I determine that I cannot resolve reasonable basis without them 

and order their filing (in which case “they will be filed”). Id. at 5. 

On June 30, 2017, Respondent reacted to Petitioner’s filing. ECF No. 17 (“Second Opp.”). 

Respondent argues that the affidavit is not the documentation that I ordered, nor does it provide 

sufficient grounds upon which to judge the claim’s reasonable basis. Second Opp. at 2. Respondent 

also notes that a case Petitioner relies on in which reasonable basis was at issue, Hippo v. Sec’y of 

Health & Human Servs., No. 10-642V, 2012 WL 1658252 (Fed. Cl. Spec. Mstr. Apr. 18, 2012), 

is distinguishable, as in that case the petitioner did file medical records allowing the special master 

to determine the reasonableness of the claim at issue. Id. Thus, Respondent repeats, no award is 

appropriate as Petitioner has never offered any objective evidence that would permit a finding of 

reasonable basis for filing the claim. Id. at 3-4. 
4 

ANALYSIS

I have in prior decisions set forth at length the relevant legal standards governing attorney’s 

fees awards in unsuccessful cases, and in particular the criteria to be applied when determining if 

a claim possessed “reasonable basis.”3 See, e.g., Allicock v. Sec’y of Health & Human Servs., No. 

15-485V, slip op. at 4-5 (Fed. Cl. Spec. Mstr. May 26, 2016); Gonzalez v. Sec’y of Health & 

Human Servs., No. 14-1072V, 2015 WL 10435023, at *5-6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). 

A petitioner must demonstrate reasonable basis for the claim’s filing through some evidentiary 

showing and in light of the totality of the circumstances. The nature and extent of counsel’s 

investigation into the claim’s underpinnings, both before and after filing, is a relevant 

consideration. Cortez v. Sec’y of Health & Human Servs., No. 09-176V, 2014 WL 1604002, at *6 

(Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma v. Sec’y of Health & Human Servs., No. 90–3277V, 

1993 WL 496981, at *2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993) (citing Lamb v. Sec’y of Health & 

Human Servs., 24 Cl. Ct. 255, 258–59 (1991)). Further, factors such as “‘the factual basis, the 

medical support, jurisdiction issues,’ and the circumstances under which a petition is filed” can be 

considered. Chuisano v. United States, 116 Fed. Cl. 276, 288 (2014) (citing Di Roma, 1993 WL 

496981, at *1). 

Here, the baseline requirements for substantiation of any Vaccine Act claim are especially 

pertinent. As the Act provides, petitions are to be accompanied by “supporting documentation” 

establishing entitlement, such as “vaccination records associated with the vaccine allegedly 

causing the injury, pre- and post-injury physician or clinic records.” Sections 11(c)(1) and (2). 

Entitlement determinations may not be made “based on the claims of a petitioner alone, 

unsubstantiated by medical records or medical opinions.” Section 13(a)(1)(B). These requirements 

(consistent with the requirement that reasonable basis be established by evidence) mean that some

supporting documentation of a claim must always be offered if the claim is ever to be viable (and 

in turn, to possess sufficient reasonable basis to prosecute). Indeed, the failure to submit any 

evidence precludes a finding of reasonable basis, as the petitioner effectively cannot meet his 

burden of proof in the first place. Chuisano, 116 Fed. Cl. at 286. 

In this case, no documentation – no proof of vaccination, no proof of injury – supporting 

Petitioner’s claim has ever been filed. I am thus deprived of the grist necessary to conduct the 

analysis vested to me as a special master to determine if Petitioner’s claim had sufficient 

reasonable basis to award fees despite the claim’s dismissal. And that evidentiary hole simply 

                                                            

3

 Although good faith is the other criteria that an unsuccessful petitioner requesting a fees award must satisfy, it is 

easily established. Respondent does not appear to question it in this case. Grice v. Sec’y of Health & Human Servs.,

36 Fed. Cl. 114, 121 (1996) (in the absence of evidence of bad faith, special master was justified in presuming the 

existence of good faith). And I otherwise find that counsel’s explanations for the circumstances in which the claim 

was initiated bulwark this conclusion (even though counsel cannot otherwise establish reasonable basis overall simply 

through his personal sworn statements). 
5 

cannot be filled with counsel’s assurances that such documentation exists – any more than such 

assurances would be sufficient to establish entitlement itself.4 The fees request must therefore be 

denied. 

Petitioner’s arguments about the relevance of a looming limitations cut-off to the 

reasonable basis analysis are misplaced. It is true that when determining if a lawyer should receive 

fees for work in a case dismissed not long after filing, special masters frequently give weight to 

the fact that the claim may have been filed hastily in order to avoid being untimely. See, e.g., 

Curran v. Sec’y of Health & Human Servs., 130 Fed. Cl. 1, 8 (2017); Hippo, 2012 WL 1658252;

McNett v. Sec’y of Health & Human Servs., No. 99-684V, 2011 WL 760314, at *7 (Fed. Cl. Spec. 

Mstr. Feb. 4, 2011) (citing Hearell v. Sec’y of Health & Human Servs., No. 94–1420V, 1993 WL 

129645, at *1 (Fed. Cl. Spec. Mstr. Apr. 6, 1993) (“[b]ecause of the time constraints, it was 

reasonable for the petitioner to file an incomplete petition in this case”)); Turner v. Sec’y of Health 

& Human Servs., No. 99-544V, 2007 WL 4410030, at *6 (Fed. Cl. Spec. Mstr. Nov. 30, 2007) (“a 

filing on the eve of the running of the statute of limitations may be supported by less information 

than would be expected if counsel had more time to conduct a pre-filing investigation of the factual 

underpinnings and the medical basis for a vaccine claim”). 

But the claimants in such cases ultimately did file records to illustrate their claim’s basis. 

See, e.g., Hippo, 2012 WL 1658252, at *1-2 (“thereafter, petitioner’s counsel filed a number of 

medical records in support of his client’s claim.”). Where this has not occurred, attorney’s fees 

and costs have been properly denied. See Simmons v. Sec’y of Health & Human Servs., 128 Fed. 

Cl. 579, 583 (2016) (special master erred in finding reasonable basis for filing claim, where counsel 

produced no supporting evidence at the time of filing or in the five months before the case was 

dismissed); Woods v. Sec’y of Health & Human Servs., 105 Fed. Cl. 148, 152 (2012) (special 

master’s finding of reasonable basis to award fees was in error when he was unable to cite any 

allegations of injury or causation, medical records, or legal authority to support his finding); Turpin 

v. Sec’y of Health & Human Servs., No. 99-564V, 2005 WL 1026714 (Fed. Cl. Spec. Mstr. Feb. 

10, 2005) (no reasonable basis where petitioner submitted one affidavit and no other records). 

Again – without any evidence at all other than counsel’s say so, I cannot evaluate reasonable basis, 

and therefore cannot award fees. 

Petitioner’s privacy concerns are also not a compelling reason to excuse the non-filing of 

the underlying records. The Vaccine Program contains numerous protections for keeping the facts 

                                                            

4 Petitioner’s assertion that the unfiled records are not relevant to the reasonable basis analysis, since all billing 

performed in this case occurred prior to counsel’s obtaining and review of the records, is particularly galling. 

Kalinowski Aff. at 4 ¶ 17. As noted, the reasonable basis inquiry considers the “totality of the circumstances,” and 

thus the records bear on a case’s reasonable basis regardless of when they are obtained and when an attorney ceased 

billing for a matter. In any event, reasonable basis is a determination reserved to the special master (who is empowered 

to award fees) – not counsel – and attorneys who wish to be paid for work in dismissed cases should know better than 

to ask a special master to take their word that the claim had reasonable basis. 
6 

of a claim private, from initializing the names of minors to the confidential manner in which 

records filed in a case are treated. In addition, petitioners may (as the first page of this Decision 

explicitly states) request redaction of a decision’s contents, thereby obtaining an additional layer 

of protection. But sooner or later, claimants must file corroborative and supporting documentation 

if they hope to obtain an entitlement award – and only upon such documentation may reasonable 

basis be assessed. The generalized desire to maintain privacy cannot be invoked herein to excuse 

that failure, and Petitioner has cited no law or controlling precedent indicating that withholding 

documents is acceptable. 

Counsel’s affidavit proposes a willingness to file the relevant records at some unspecified 

time, if only if I were to so order that it be done. Kalinowski Aff. at 5 ¶ 21. Some might interpret 

my May 31st Order to be the very judicial edict that counsel envisions – raising the question why 

yet another order is necessary. But Petitioner has already been afforded ample opportunities to 

substantiate a fees request initiated months ago. ECF No. 15. In a case dismissed within six months 

of filing, and where fees were sought just before expiration of the 180-day period afforded by 

Vaccine Rule 13(a) in which to act, Petitioner is not entitled to even more time to file the kinds of 

records that claimants routinely file in Vaccine Act cases at their outset.5

 As I noted in my order dated May 31, 2017, the failure to submit evidence to establish 

reasonable basis carries consequences. ECF No. 15, citing Chuisano, 116 Fed. Cl. at 286. That 

consequence here is a denial of the requested attorney’s fees and costs. 

CONCLUSION 

In accordance with the foregoing, I hereby DENY an award of attorney’s fees and costs. 

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the Court 

SHALL ENTER JUDGMENT in accordance with the terms of this decision.6

 

IT IS SO ORDERED. 

 

                         /s/ Brian H. Corcoran 

 Brian H. Corcoran 

 Special Master 

 

                                                            

5

 Given my determination that the time to file such records has long passed, Petitioner is admonished not to attempt 

to do so after this Decision issues, whether accompanying a motion for reconsideration or otherwise. Such records 

would not constitute grounds for reconsideration of my decision in any event. See System Fuels, Inc. v. United States, 

79 Fed. Cl. 182, 184 (2007) (among the grounds under United States Court of Federal Claims Rule 59 for 

reconsideration is the filing of “previously unavailable evidence”).

6

 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices 

renouncing their right to seek review.