Swintosky v. Secretary of Health and Human Services
12-403
| Fed. Cl. | Nov 30, 2017Background
- Petitioners Eric and Heather Swintosky (on behalf of their daughter C.M.S.) alleged the influenza vaccine caused a stroke and acute hemorrhagic leukoencephalomyelitis; the case settled by joint stipulation and compensation was awarded.
- Petitioners filed a fee petition seeking $102,353.20 in attorneys’ fees and $51,743.86 in costs (including expert fees); the Secretary did not object to specific amounts.
- The Secretary’s Rule 4 Report earlier contested causation and noted petitioners lacked an expert report; petitioners later submitted expert reports and the case resolved.
- Petitioners argued that the Secretary’s failure to challenge the fee request should be treated as waiver and that unopposed fees may be granted without further analysis.
- The Secretary contended the Vaccine Act and Vaccine Rules do not require the Government to participate in fee litigation and therefore deferred to the special master’s discretion.
- The Special Master found the Secretary had been given opportunity to object, elected not to do so as a policy choice, and therefore waived objections; the full fee request was awarded ($154,097.06 payable to petitioners and counsel).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent must meaningfully participate in fee litigation or may defer to the special master | Swintosky: §300aa-15(e) and general practice require respondent to engage; failure to object should be treated as waiver | Secretary: statute and Vaccine Rule 13 are silent on respondent’s role; DOJ/HHS may defer to special master | Special Master: Respondent has a duty to participate in proceedings and merely deferring is insufficient; lack of objections can be treated as waiver when respondent had opportunity to object |
| Whether the Secretary’s failure to present specific objections to a fee application constitutes waiver of those objections | Swintosky: Once petitioner supports a fee request, burden shifts to government to rebut; silence equals unopposed and can be granted without further analysis | Secretary: Declines to object for resource or policy reasons and asserts deference to the special master; asserts no waiver | Held: Given opportunities to respond and a deliberate policy of non-objection, the Secretary waived any challenges to amount; the request will not be reduced sua sponte |
| Whether the special master must independently scrutinize and reduce fee requests despite no government objection | Swintosky: If unopposed, fees may be granted without special master acting as a fee inquisitor | Secretary: Defers to special master discretion to determine reasonableness | Held: Special master may investigate sua sponte but will not do so here given respondent’s waiver; full award granted |
Key Cases Cited
- Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319 (D.C. Cir. 1982) (burden shifts to government to rebut supported fee rates)
- Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995) (government must present evidence to challenge fee awards)
- Nadarajah v. Holder, 569 F.3d 906 (9th Cir. 2009) (fee-opponent must present evidence to support objections)
- United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203 (3d Cir. 2000) (party must be given notice to defend fee requests properly)
- Sufi Network Servs., Inc. v. United States, 113 Fed. Cl. 140 (2013) (after fee applicant shows reasonableness, government must rebut presumption of reasonableness)
- CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642 (2016) (fee statutes should be interpreted consistently across contexts)