McKellar v. Secretary of Health & Human Services
101 Fed. Cl. 297
| Fed. Cl. | 2011Background
- Petitioner Katherine McKellar, pro se, sought vaccine injury compensation under the Act (42 U.S.C. §§ 300aa-11 to -34) for vaccines given March 7, 2007.
- Special master later granted counsel Ronald C. Homer interim representation and petitioner filed amended petition August 16, 2010.
- Petitioner sought interim attorneys’ fees and costs on February 14, 2011; a supplemental request followed March 25, 2011.
- Special master awarded interim fees of $18,255.53 on June 3, 2011.
- Respondent sought review on July 5, 2011, challenging interim-fee entitlement before merits and the basis for the fee award.
- Petitioner’s counsel indicated withdrawal from the proceeding and the petition’s basis was questioned by the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim attorneys’ fees are permissible before a merits decision | McKellar contends interim fees allowed under Avera/Shaw | Respondent argues no interim-fee authority before entitlement decision | Interim fees permitted; remand for renewed basis review |
| Whether the petition had a reasonable basis despite missing medical records at filing | Petition filed with good faith and reasonable basis despite sparse records | Lack of records undermines reasonable basis | Reasonable basis exists; remand to reassess under proper standard |
| Whether the special master errored by applying a good-faith presumption to reasonable-basis analysis | McKellar should not have burden shifted by presumption | Good faith presumed, informs reasonableness inquiry | Remand to reassess reasonable basis without conflating with good faith |
Key Cases Cited
- Avera v. Secretary of Health & Human Servs., 515 F.3d 1343 (Fed.Cir. 2008) (interim fees permissible under Vaccine Act in appropriate cases)
- Shaw v. Secretary of Health & Human Servs., 609 F.3d 1372 (Fed.Cir. 2010) (interim fees before merits decision reviewable; entitlement includes fees if good faith and reasonable basis)
- Saunders ex rel. Saunders v. Sec’y of Health & Human Servs., 25 F.3d 1031 (Fed.Cir. 1994) (‘compensation’ does not equal mandatory interim-fee right; supports interim-fee concept)
- Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375 (Fed.Cir. 1994) (no presumption of reasonable basis; must prove reasonable basis)
- de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347 (Fed.Cir. 2008) (arbitrary/capricious review; standard for reviewing proceedings)
- Hanrahan v. Hampton, 446 U.S. 754 (Supreme Court 1980) (interim-fee principles informing fee-shifting statutes)