Hirmiz v. Secretary of Health and Human Services
06-371
| Fed. Cl. | Dec 7, 2017Background
- Petitioners Francia and Peter Hirmiz filed a Vaccine Act petition on behalf of their daughter J.H. after severe neurological degeneration allegedly following two half-doses of influenza vaccine; special master denied entitlement and the denial was affirmed on appeal.
- Petitioners pursued review in the Court of Federal Claims and then the Federal Circuit (affirmed by Rule 36), followed by petitions for panel rehearing, rehearing en banc, and certiorari to the Supreme Court (all denied).
- Petitioners applied for attorneys’ fees under 42 U.S.C. § 300aa-15(e) covering work through entitlement, the Court of Federal Claims review, the Federal Circuit appeal, and subsequent rehearing/certiorari efforts; the special master awarded fees for pre‑appellate work but denied fees for appellate and certiorari work, finding those phases lacked a reasonable basis.
- The central legal question on review was whether petitioners’ appellate work (Federal Circuit appeal; rehearing/en banc; certiorari petition) was brought in good faith and had a reasonable basis such that fees should be awarded despite substantive failure on the merits.
- The Court of Federal Claims reviewed the special master’s denial for abuse of discretion and concluded: the Federal Circuit appeal had a reasonable basis (complex factual causation issues) and fees for that phase should be awarded; the rehearing/en banc and certiorari efforts were without reasonable basis (they abandoned factual claims and relied on a waived Stern‑based standard‑of‑review argument), so fees for those phases were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate work before the Federal Circuit had a "reasonable basis" for fee award | Hirmiz argued the appeal contested special master factual findings (complex causation issues) and was not frivolous; good faith and objective basis existed | Secretary argued the appeal effectively reargued facts under deferential review and lacked merit; appellate work was unreasonable | Court: Appeal had reasonable basis; fees awarded for Federal Circuit phase ($67,733.50) |
| Whether petitions for rehearing/rehearing en banc to the Federal Circuit had a reasonable basis | Hirmiz argued constitutional challenge to standard of review (Stern) justified rehearing | Secretary argued those petitions were meritless/waived because the standard‑of‑review claim was not properly raised on appeal | Court: Rehearing petitions lacked reasonable basis (argument waived); fees denied for rehearing phase |
| Whether petition for writ of certiorari to Supreme Court had a reasonable basis | Hirmiz renewed Stern‑based challenge in certiorari petition | Secretary noted the Stern claim was waived and unlikely to succeed after briefing at prior stages | Court: Certiorari petition lacked reasonable basis; fees denied for certiorari phase |
| Standard of review of special master’s fee denial | Hirmiz argued special master abused discretion in relying on Rule 36 affirmance and treating cursory Stern allusion as dispositive | Secretary defended special master’s rational explanation that appellate activity was legally dubious and thus unreasonable | Court: Applied abuse‑of‑discretion standard; found special master’s reasoning inadequate re: Federal Circuit appeal (reversed in part) but adequate re: rehearing/certiorari (affirmed in part) |
Key Cases Cited
- Simmons v. Secretary of Health & Human Servs., 875 F.3d 632 (Fed. Cir. 2017) (distinguishes good faith and reasonable basis in Vaccine Act fee awards)
- Chuisano v. United States, 116 Fed. Cl. 276 (Fed. Cl. 2014) (discusses reasonable‑basis standard for Vaccine Act fees)
- Perreira v. Secretary of Health & Human Servs., 33 F.3d 1375 (Fed. Cir. 1994) (reasonable basis can dissipate as case develops)
- Davis v. Secretary of Health & Human Servs., 105 Fed. Cl. 627 (Fed. Cl. 2012) (cautions against inferring frivolity from Federal Circuit Rule 36 summary affirmance)
- Milik v. Secretary of Health & Human Servs., 822 F.3d 1367 (Fed. Cir. 2016) (analyzed Stern‑based challenge to Vaccine Act review structure)
- Althen v. Secretary of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005) (framework for court review after setting aside special master decision)
- Phillips v. Secretary of Health & Human Servs., 988 F.2d 111 (Fed. Cir. 1993) (fees for initial proceedings separate from fees for appeals)
- Sebelius v. Cloer, 589 U.S. 369 (U.S. 2013) (addresses fee recovery procedure under the Vaccine Act)