OPINION AND ORDER
Ms. Marilyn Davis seeks review of a decision entered by the special master on March 20, 2012, concerning attorneys’ fees and costs in her vaccine ease. Ms. Davis had presented a petition for compensation alleging that she developed neuromyelitis optica (“NMO”) as a result of an influenza vaccination. The special master denied her claim for compensation, finding that she failed to provide a persuasive theory of how the vaccine could have triggered the onset of her NMO. Petitioner sought review in this court which affirmed the denial of entitlement to compensation, concluding that several errors in the proceedings before the special master were harmless. Ms. Davis then appealed to the Federal Circuit, which also affirmed.
After her defeat in the Federal Circuit, Ms. Davis asked the special master to award her attorneys’ fees and costs pursuant to 42 U.S.C. § 300aa-15(e)(l). The special master made an award but declined to grant the bulk of the fees and costs that she sought. Specifically, he denied all fees and costs associated with her appeal to the Federal Circuit, ruling that the appeal lacked a reasonable basis. He also found that counsel spent an inordinate amount of time in handling the motion for review to this court and accordingly reduced the award for that work.
Ms. Davis requests that this court set aside the special master’s decision as an abuse of his discretion and award her the amount she originally sought. The government opposes Ms. Davis’s motion and asks the court to affirm the special master’s decision.
A. The Special Master’s Entitlement Decision
The background of this case has been described at length in a prior opinion. See Davis v. Secretary of Health & Human Servs. (“Davis III”),
A hearing was held on September 15, 2009 before the special master. Dr. J. Griffith Steel testified on behalf of Ms. Davis. He opined that the influenza vaccine damaged the lining of the blood vessels, which permitted the protein aquaporin-4 to pass through the blood-brain barrier. Tr. 68:3-25, 121:5-20 (Sept. 15, 2009). This, in turn, triggered an immune response from the body which resulted in damage to the myelin. See Tr. 20:24 to 21:10, 22:19-25, 68:14-21 (Sept. 15, 2009). The government’s expert, Dr. Arthur Safran, opinioned that no connection existed between Ms. Davis’s vaccination and her NMO. He had found no medical literature discussing such a correlation, and he also pointed to alternative causes which he believed could better explain petitioner’s NMO. See Tr. 137:3-8 (Sept. 15, 2009).
The special master rejected Dr. Steel’s hypothesis, finding that “Ms. Davis has not established, by a preponderance of the evidence, the reliability of the assertion that the flu vaccine can damage” the lining of the blood vessels. Davis v. Secretary of Health & Human Servs. (“Davis II”), No. 07-451V,
B. Ms. Davis’s Motion for Review and Subsequent Appeal
Ms. Davis filed a motion for review with this court on April 15, 2010. She contended that the special master had applied too exacting a standard in assessing Dr. Steel’s theory and that the evidentiary record supported finding that each of the Althen prongs for causation had been satisfied. See Pet’r’s Mem. in Support of Mot. for Review of the Spec. Mstr.’s Decision at 15-20, Apr. 15, 2010, EOF No. 73. Among other things, she argued that the special master had raised her burden of proof by requiring that Dr. Steel’s hypothesis be generally accepted in the medical community. Id. at 17-18. A hearing was held on May 26, 2010, during which Ms. Davis was represented by Ms. Sylvia Chin-Caplan and Ms. Christina M. Ciampolillo.
This court affirmed the special master’s decision in an opinion issued July 12, 2010. See Davis III,
Petitioner appealed from this judgment to the Court of Appeals for the Federal Circuit. In her brief, she focused particularly on prong one of Althen and claimed that she had satisfied the requirements of that prong by providing (1) “a biologically plausible mechanism,” (2) “circumstantial evidence contained in the medical records,” and (3) “case reports and supporting statements in the scientific literature.” Brief for Petitioner-Appellant (“Appellant’s Br.”) at 31, Davis IV,
The Court of Appeals summarily affirmed this court’s decision, citing Fed. Cir. R. 36.
C. The Special Master’s Decision on Attorney’s Fees and Costs
After the Federal Circuit affirmed the denial of entitlement, Ms. Davis moved to the last stage of the litigation, namely, attorneys’ fees and costs. Under the Vaccine Act, even if a petitioner does not obtain compensation for her injury, a special master may grant her attorneys’ fees and costs if he “determines that the petition was brought in good faith and there was a reasonable basis for the claim.” 42 U.S.C. § 300aa-15(e)(l). Ms. Davis had already received an award of interim attorneys’ fees and costs for the expenses she incurred in presenting her original petition before the special master. See Davis v. Secretary of Health & Human Servs., No. 07-451V,
The special master awarded Ms. Davis $20,679.00, less than thirty percent of the amount she had requested. See Davis V,
Apart from Ms. Davis’s failure to address Moberly in her appellate briefing, the special master based his finding on three other considerations. See Davis V,
Prescient that this court might be asked to review his decision, the special master provided an alternative holding of what petitioner’s reasonable attorneys’ fees would have been for the appeal. Davis V,
The special master’s alternative holding did not include any award of Ms. Davis’s costs incurred in pursuing her appeal before the Federal Circuit. Davis V,
On April 19, 2012, Ms. Davis filed a motion for review of the fee decision, contesting the special master’s reductions. The government has urged the court to affirm the special master’s award of attorney’s fees as a
STANDARD OF REVIEW
The Vaccine Act authorizes this court to review decisions by special masters in vaccine cases and to “set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 300aa-12(e)(2)(B). The precise standard to be applied varies depending on the nature of the decision under review. “Fact findings are reviewed ... under the arbitrary and capricious standard; legal questions under the ‘not in accordance with law’ standard; and discretionary rulings under the abuse of discretion standard.” Caves v. Secretary of Dep’t of Health & Human Servs.,
Here, Ms. Davis specifically challenges the special master’s determinations that (1) she lacked a reasonable basis for her appeal to the Federal Circuit and (2) the number of hours billed was unreasonable. Both of these findings are matters entrusted to the discretion of the special master. See McKellar v. Secretary of Health & Human Servs.,
According to the general standards set out by the Federal Circuit in other contexts, this court will find an abuse of discretion only where the special master’s decision “(1) is clearly unreasonable, arbitrary, or'fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on which the [special master] could rationally base [his] decision.” Ninestar Tech. Co. v. International Trade Comm’n,
Generally, “[i]f the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.” Hall,
ANALYSIS
In adopting the Vaccine Act, Congress sought to “establish a [f]ederal ‘no-fault’ compensation program under which awards can be made to vaccine-injured persons quickly,
Ms. Davis bears the burden of demonstrating that she had a reasonable basis for her claim. McKellar,
A. The Basis for Ms. Davis’s Appeal
The special master denied Ms. Davis’s request for fees and costs pertaining to her counsel’s work before the Federal Circuit, on the ground that her appeal lacked a reasonable basis. He identified four factors that led to this conclusion. Davis V,
The special master treated Moberly as unambiguously and dispositively rejecting the arguments made by Ms. Davis on appeal. Davis V,
The problem with the special master’s analysis is that he drew a direct comparison between incommensurate elements of Ms. Davis’s burden of proof. Ms. Davis discussed biological plausibility in the context of the first Althen prong. Appellant’s Br. at 25 (“Althen’s prong 1 is satisfied by showing that it is biologically plausible that a specific vaccine can cause a specific injury.”). In contrast, Moberly criticized the use of the “plausibility” standard in the broader context of proving causation-in-faet, taking into account all three Althen prongs. See Moberly,
In actuality, the standard of proof for the first Althen prong standing alone is still an unsettled matter in the vaccine jurisprudence. A judge of this court recently reversed a special master for his mode of applying the more-likely-than-not standard to one but not all of the Althen prongs collectively. Doe 93 v. Secretary of Health & Human Servs.,
This court does not propose to take a position on this dispute in addressing attorneys’ fees for Ms. Davis. Instead, these eases are cited merely to demonstrate that Moberly has not definitively resolved the standard of proof for the first Althen prong, standing alone. Rather, on its face Moberly reaffirms that the petitioner’s overall burden is one of a preponderance of the evidence
This is not to suggest that neglecting Mob-erly was a prudent decision on the part of Ms. Davis’s counsel. Even though that case did not render Ms. Davis’s appeal without a reasonable basis, it certainly had a bearing on a number of the issues raised in her appellate brief. The relevance of Moberly is reinforced by the fact that each of the three judges on the appellate panel inquired about that precedent during oral argument, with one even going so far as to ask why Ms. Davis failed to mention it in her brief. Davis IV Oral Argument at 5:17 to 10:01. Ms. Davis would have been well-served by addressing Moberly, perhaps putting that decision in context by comparing it to Andreu,
The special master also took into account the government’s notice that the United States might contest petitioner’s claim for attorneys’ fees. See Davis V,
The special master also inferred that the appeal lacked a reasonable basis because the costs of the appeal were taxed to Ms. Davis. See Davis V,
Lastly, the special master noted that the Federal Circuit issued its decision pursuant to Fed. Cir. R. 36. Davis V,
The special master concluded that, because Ms. Davis’s appeal was also dispatched by Rule 36, it too must have been “an easy one” for the Federal Circuit to decide. Davis V,
These flaws in the special master’s reasoning demonstrate that he abused his discretion in finding that Ms. Davis lacked a reasonable basis for her appeal. “[Bjeeause the special master’s decision was not in accordance with law, [this] court [is] permitted to review the evidence anew and come to its own conclusion.” Althen,
In assessing whether Ms. Davis had a reasonable basis for her appeal, the court gives weight to the outcome of Calise v. Secretary of Health & Human Servs., No. 08-865V,
There is nothing inherently improper in the disparate outcomes of these two eases, of course. A decision by one special master is not binding on another special master, see Hanlon v. Secretary of Health & Human Servs.,
B. The Special Master’s Other Reductions
1. Reduced hours for brief uniting, preparing for oral argument, and second counsel.
The special master declined to award attorneys’ fees for 32.3 hours spent by Ms. Davis’s counsel in preparing for and arguing the motion for review. A special master is permitted and even expected to examine a law firm’s time sheets and root out
Here, the special master provided lucid explanations for his reductions. First, he deducted 20 hours from the 45 hours billed for drafting the motion for review. See Davis V,
Second, the special master awarded fees for 14.2 hours spent by Ms. Chin-Caplan in preparing for the hearing on the motion for review, rather than the 17.2 hours sought by petitioner. Davis V,
Lastly, the special master denied all fees and costs associated with Ms. Ciampolillo’s presence at the hearing. He commented that Ms. Chin-Caplan was capable of arguing the motion for review by herself, as she had done in a number of prior eases. Davis V,
Despite the fact that the court found Ms. Davis’s entitlement case to be anything but routine, given the rapidly emerging biological research results, the court finds no evidence that the special master abused his discretion in making these reductions. He provided specific explanations for why he considered certain hours to be unnecessary and how he reflected those reductions in his final award. Indeed, other courts have approved of the techniques he employed in arriving at a final fee amount figure. See e.g., Hines,
2. Alternate holding on fees for the appeal to the Federal Circuit.
Apparently aware that this court might review and reverse his ruling that Ms. Davis lacked a reasonable basis for her appeal to the Federal Circuit from the denial of entitlement, the special master provided an alternate holding, i.e., if petitioner did have a reasonable basis, she would be entitled to only $27,606.65 for counsel’s work during the appeal. Davis V,
The Supreme Court nevertheless noted that “the trial court must apply the correct standard, and the appeals court must make sure that has occurred.” Fox,
In addition to these Supreme Court opinions, the court is also guided by Wasson ex rel. Wasson v. Secretary of Health & Human Servs.,
This court finds itself in a similar predicament to the Wasson court with respect to the alternate holding for attorneys’ fees on appeal. The special master found that unspecified “portions of Ms. Davis’s initial Federal Circuit brief were either copied from or based upon previously written briefs,” Davis V,
In these circumstances, the court cannot adopt the special master’s alternative result. He has not given any indication as to what method he used to derive his result or how he employed it. Cf. Perdue,
3. Alternate holding on costs for the appeal to the Federal Circuit.
Just as the special master provided an alternate holding for petitioner’s appellate fees, so too did he give an alternate holding for her appellate costs. He ruled that, if Ms. Davis did have a reasonable basis for appealing the adverse entitlement decision to the Federal Circuit, she nonetheless would not be entitled to any costs. Davis V,
As the court discussed supra, the special master placed too great an emphasis on the clerk’s quotidian application of Fed. R.App. P. 39. Although he says that the Federal Circuit ordered costs to be awarded to the government, the affirmance itself did not tax costs to petitioner. Rather, it was the entry of judgment, issued by the clerk’s office, which stated that “[c]osts are taxed against the Appellant(s) in favor of the Ap-pellee(s) under Rule 39.” Notice of Entry of Judgment at 1, May 12, 2011, ECF No. 82. There is no indication that the Federal Circuit gave the matter of costs any thought whatsoever in issuing its ruling citing Fed. Cir. R. 36. Certainly there is no suggestion that the appellate court sought to foreclose the possibility of an award of costs under 42 U.S.C. § 300aa-15(e)(l). Consequently, the special master acted arbitrarily in refusing to award costs. Cf. Hocraffer,
CONCLUSION
For the reasons stated, petitioner’s motion for review of the special master’s decision on attorneys’ fees and costs is GRANTED IN PART and DENIED IN PART, as follows:
1. The portion of the special master’s decision finding that Ms. Davis lacked a reasonable basis for her appeal to the Federal Circuit from an adverse entitlement decision is SET ASIDE and replaced by the court’s finding that her appeal had a reasonable basis;
2. The portion of the decision awarding attorneys’ fees in a reduced amount for counsel’s work preparing and arguing the motion for review of the adverse entitlement decision is AFFIRMED;
3. The portion of the decision stating in the alternative an amount of Ms. Davis’s fees for her appeal is SET ASIDE and REMANDED to the special master for further proceedings;
*641 4. The portion of the decision concerning Ms. Davis’s costs during her appeal is REVERSED and replaced by the court’s own finding that she is entitled to such costs.
In accord with 42 U.S.C. § 300aa-12(e)(2), the court allows 90 days for the completion of proceedings on remand.
It is so ORDERED.
Notes
. In accord with the Rules of the Court of Federal Claims ("RCFC”) App. B, Rule 18(b), this opinion and order is initially filed under seal. By rule, the parties are afforded fourteen days within which to propose redactions.
. NMO is the "demyelination of the optic nerve and spinal cord; it is marked by diminution of vision and possibly blindness, flaccid paralysis of the extremities, and sensory and genitourinary disturbances." Dorland's Illustrated Medical Dictionary 1267 (32nd ed. 2012). Demyelination is the "destruction, removal, or loss of the myelin sheath of a nerve or nerves.” Id. at 486.
. Under Althen, to demonstrate causation-in-fact a petitioner must "show by preponderant evidence that the vaccination brought about her injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Secretary of Health & Human Servs.,
.The court held that the special master acted improperly by considering evidence outside the record, but found that this error was harmless. Davis III,
. In pertinent part, that rule provides:
The court may enter a judgment of affirmance without opinion, citing this rule, when it determines that any of the following conditions exist and an opinion would have no precedential value:
(a) the judgment, decision, or order of the trial court appealed from is based on findings that are not clearly erroneous; [or]
(e) a judgment or decision has been entered without an error of law.
Fed. Cir. R. 36.
. Fed. R.App. P. 39(a)(2) provides that "if a judgment is affirmed, costs are taxed against the appellant.”
. Both the special master and this court cited Moberly in their opinions on Ms. Davis’s petition for entitlement and her motion for review, respectively. See Davis II,
. Moberly, of course, stands for more than this overly simplistic recital of the statutory standard. The court has commented on the standard of proof only because it was the aspect of Moberly to which the special master pointed in his decision on attorneys’ fees. See Davis V, 2012 WL 1357501, at *11. Notably, Moberly also held that "the special master is entitled to require some indicia of reliability to support the assertion of the expert witness [as to the posited biological mechanism].”
. Further complicating the special master’s analysis is the holding in Capizzano v. Secretary of Health & Human Servs.,
. As a general principle, the court is hesitant to give much weight to the government’s warnings when addressing whether a petitioner's claim has a reasonable basis. For instance, in opposing the present motion for review, the government chides Ms. Davis for failing to cite to Ferreira v. Secretary of Health & Human Servs.,
. The special master acknowledged as much in his opinion. He disavowed using Rule 36 as a bright line test and noted that special masters have awarded attorneys’ fees for appeals that were denied without opinion. Davis V,
. The special master does not mention Calise in his decision, although Ms. Davis discussed the case in her briefing. See Pet'r's Reply to Resp't’s Resp. in Opp’n to Pet’r’s Appl. for Final Attys’ Fees and Costs, Nov. 17, 2011, ECF. No. 90, at 9-10.
.In addition to serving as Ms. Calise’s expert witness, Dr. Steel was also her treating neurologist. Calise,