OPINION
This ease is before the court on a motion by respondent for review of the special master’s decision to award interim attorneys’ fees. The underlying entitlement claim is still pending. The motion is fully briefed, and we heard oral argument on October 4, 2011. For the reasons explained below, we grant respondent’s motion for review.
PROCEDURAL BACKGROUND
On December 7, 2009, Katherine McKellar, acting pro se, filed a petition seeking compensation under the National Vaccine Injury Compensation Program. See 42 U.S.C. §§ 300aa-l to -34 (2006) (the “Act”). Petitioner claims to have suffered injuries resulting from Menactra, Varicella, Tetanus-diphteria-acellular-pertussis (“Tdap”), and Human Papillomavirus (“HPV”) vaccines that were administered on March 7, 2007.
Although the entitlement claim is still pending before the special master, on February 14, 2011, petitioner filed a motion seeking an award of interim attorneys’ fees and costs. On March 25, 2011, petitioner filed a supplemental motion for attorneys’ fees and costs. Because petitioner’s counsel intends to withdraw from the proceeding pending before the special master,
On June 3, 2011, the special master granted petitioner’s application for attorneys’ fees and costs in the amount of $18,255.53.
FACTUAL BACKGROUND
The petition asserts that on March 7, 2007, petitioner, who was born on December 13, 1990, received the Menactra, Varicella, Tdap, and HPV vaccines. On April 12, 2007, petitioner went to the emergency room complaining of blisters on her lip and tongue. Pet’r’s Ex. 1 at 8.
On July 20, 2007, a Vaccine Advez’se Event Reporting System (VAERS) report
within a week[,] one of the injection sites swelled and became painful and red---Within two weeks of injections, both lips swelled for one day. Within 4 weeks of injection, lips ez’acked and by the fifth week after injection the patient was hospitalized for sevez’e stomatitis. The patient has never suffered these symptoms before, nor has she seeked [sic] cai’e for the problem prior to this. The patient became dehydz-ated and needed IV caz’e. The patient had blister type lesions that started on the outside of the lips and continued to spread to the back of the throat.
Pet’r’s Ex. 5 at 1.
A medical record dated June 3, 2008, reflects that petitioner “[c]omplains of blister’s for past 4 days. History of adverse reaction to vaccines one year ago and was hospitalized. Had severe lip swelling with throat
DISCUSSION
In the proceeding below, respondent opposed the application on the grounds that the Vaccine Act does not authorize the award of attorneys’ fees and costs prior to a resolution on the merits, i.e., either an award granting compensation or a denial of compensation. While it acknowledged that the Federal Circuit’s decision in Avera permits an award of interim fees under some conditions, it nevertheless contended that the petitioner had not met those conditions. Respondent also argued that even if interim fees were permissible under Avera, petitioner did not meet the requirement under the Act that the petition have a reasonable basis.
The special master held that despite the lack of an entitlement decision, interim fees were permissible. The special master noted that “[u]nless interim fees are awarded to departing counsel, the purpose of the Act to encourage representation of vaccine-injured persons may be thwarted.” McKellar v. Sec’y Health & Human Servs., 09-841V,
The Vaccine Act provides that we may reverse the decision of a special master only if that decision is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” 42 U.S.C. § 300aa-12(e)(2)(B) (2006). Thus, the special master’s finding of facts are reviewed under the “arbitrary and capricious” standard. See de Bazan v. Sec’y of Health & Human Servs.,
I. Interim fees before an entitlement decision are allowed under Avera and its progeny
Respondent asserts that it was reversible error for the special master to “award fees and costs prior to either an award of compensation or entry of judgment denying compensation under Section 15(e)(1) of the Act.” Resp’t’s Mot. for Rev. 7. Respondent interprets the Act to require either (1) a judgment for compensation, triggering attorneys’ fees under section 15(e), or (2) a denial of compensation, which would permit a discretionary award of attorneys’ fees. According to respondent, because neither circumstance is present, petitioner’s withdrawing counsel is not allowed fees and costs under the Act at this time.
Section 15(e) of the Act provides, in pertinent part:
(1) In awarding compensation on a petition filed under section 2111 [42 U.S.C. § 300aa-ll] the special master or court shall also award as part of such compensation an amount to cover—
(A) reasonable attorneys’ fees, and
(B) other costs,
incurred in any proceeding on such petition. If the judgment of the [United States Court of Federal Claims] on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.
42 U.S.C. § 300aa-15(e)(l) (2006). The Federal Circuit twice has addressed whether the statute contemplates an award of interim fees, first in Avera, and then in Shaw v. Secretary of Health & Human Services,
A. Avera v. Secretary of Health & Human Sewices
In Avera, petitioners filed a petition for vaccine injury compensation on behalf of their son. The special master concluded that
On appeal, the Federal Circuit framed the issue as “whether [petitioners] are entitled to an award of interim fees pending appeal.” Id. at 1350. The government argued that interim fees were inappropriate because section 300aa-15(f)(l) provides for “compensation,” which, it argued, includes attorney’s fees only when there has been an “election] to accept or reject” compensation under section 300aa-21(a). Id. This election, the government noted, could only be made after an entry of judgment. The Federal Circuit rejected this proposition under the reasoning of Saunders ex rel. Saunders v. Secretary of Health & Human Services,
The Federal Circuit also noted the numerous other fee-shifting statutes which have been construed to allow interim fees — including statutes that were silent in that respect. Specifically, the court pointed to Bradley v. School Board of Richmond,
The Federal Circuit also noted that “in vaccine cases[,] there is even more reason to award interim fees because there is no prevailing party requirement.” Id. The purpose of the Act is to “ensure that vaccine injury claimants have readily available a competent bar to prosecute their claims.” Id. To deny interim fees in all cases, thus would “clearly make it more difficult for claimants to secure competent counsel because delaying payments decreases the effective value of awards.” Id.
The ruling in Avera nevertheless suggests that there is not a presumption of entitlement to interim fees. Rather, the court noted that “[i]nterim fees are particularly appropriate in cases where proceedings are protracted and costly experts must be retained.” Id. at 1352. Petitioners, however, had not demonstrated undue hardship, the fees were not substantial, no experts were employed, and there was only a short delay in the award pending appeal. The court affirmed the judgment that petitioners were
Respondent distinguishes Avera on the basis that there had been a decision on compensation in that case, whereas the same is not true here. Respondent wishes to mark the entitlement decision as the earliest point in time after which attorneys’ fees can be awarded. Accordingly, respondent classifies petitioner’s fee request here as a “fee award pendente lite,” and under its reasoning, precluded under the Act and Avera.
B. Shaw v. Secretary of Health & Human Services
Shaw implicitly answered the question not resolved in Avera, namely whether interim fees are permissible before an entitlement decision is made. In Shaw, petitioner sought compensation under the Act for an alleged injury resulting from a Hepatitis B vaccine. The petition was filed in 2001, but consideration was stayed until 2006 because of a pending omnibus proceeding involving numerous Hepatitis B eases. On March 12, 2008, the special master held an entitlement hearing and received testimony from three witnesses, including petitioner’s expert. Shaw,
Petitioner then moved for reconsideration of the application. The special master denied that motion, explaining that she was preparing the entitlement decision, and her entitlement decision would consider the disputed fee portion. Petitioner then sought review of the special master’s decision. We held that this court lacked jurisdiction to review a special master’s interim fee award because it was not a “final decision” under the Act. See Shaw v. Sec’y Health & Human Servs.,
The issue, as framed by the Federal Circuit, was “whether the Court of Federal Claims has jurisdiction to review an interim fee decision prior to the decision on the merits of the underlying claim.” Shaw,
The court further noted that a petitioner under the Act is entitled to attorneys’ fees “as long as he or she brings the action in good faith and with a reasonable basis, regardless of the ultimate outcome of the case.” Id. at 1377. A special master can also “often determine at an early stage of the proceedings whether a claim was brought in good faith and with a reasonable basis.” Id. (quoting Avera,
C. The scope of permissible attorneys’ fees under Avera
Avera and Shaw, when construed together, provide that interim fees are allowed
The special master asserted that interim fees were appropriate because “unless interim fees are awarded to departing counsel, the purpose of the Act to encourage representation of vaccine-injured persons may be thwarted.” McKellar,
The special master cites to Silver v. Secretary of Health & Human Services, No. 99-462V,
an award to the petitioner and current or former counsel that indicates and includes the amounts for former counsel’s attorneys’ fees and costs. Former counsel in this case may seek reimbursement of their fees and costs at an appropriate point in the progress of the case toward final resolution, when such fees and costs are sought by Petitioner.
Id. at *9. The special master in Silver thus expressly provided that attorneys’ fees and costs can be awarded to former counsel. We agree. The special master could award attorneys’ fees and costs to a withdrawn counsel at the conclusion of the entitlement proceeding. We hold, therefore, the mere fact that an attorney plans to withdraw is not necessarily a hardship that triggers an award of interim attorneys’ fees and costs. Moreover, none of the other factors mentioned in Avera were implicated in this case.
The present facts, however, go beyond a routine withdrawal and substitution of counsel. The special master has stated that “Petitioner’s medical records disclosed no evidence of a valid claim for compensation,” and further noted the “weakness of the claim.” McKellar,
II. The special master’s decision on attorneys’ fees and costs
When a petition succeeds on the merits, the compensation award automatically includes an amount for reasonable attorneys’ fees and other costs. 42 U.S.C. § 300aa-15(e)(1) (2006). When a petition loses on the merits, or when the request is for an interim award, the special master may make a dis
The presence of good faith here is not challenged. Rather, the respondent argues that the petition lacked a reasonable basis. Respondent asserts that a reasonable basis cannot be present when medical records are not filed along with the petition. The respondent also argues that the special master conflated the separate statutory elements of “good faith” and “reasonable basis” by extending the presumption of the former to the latter.
A. A reasonable basis can exist even if medical records are not filed simultaneously with the petition
Section 11 of the Act prescribes the required elements for a proper petition under the Act. Reduced to a minimum, a petition for compensation must contain three things: (1) an affidavit or other supporting documentation demonstrating that a person received a vaccine and suffered a resulting injury, (2) medical records regarding the vaccine and resulting injuries, and (3) if those records in (1) or (2) are not available, the reason for their unavailability. See 42 U.S.C. § 300aa-11(e) (2006). The respondent argues that petitioner’s failure to collect medical records before filing a petition precludes awarding attorneys’ fees. In response, petitioner asserts that (1) vaccine claims are rarely filed ab initio with complete medical records, (2) petitioners often file without any records to satisfy the three-year statute of limitations, and (3) the cost of providing full records at the outset is prohibitive and often requires a special master’s subpoena to record holders.
Respondent’s argument that the lack of medical records at the filing of a petition strikes a fatal blow to the petition’s reasonable basis is unpersuasive. It is not uncommon in vaccine cases for petitions to lack complete medical records. See Stewart v. Sec’y Health & Human Servs., No. 02-819,
B. The special master’s determination of reasonable basis
To establish a reasonable basis, the petitioner must rely on more than speculation. See Perreira v. Sec’y of Health & Human Servs.,
On appeal, the Federal Circuit noted that Congress did not intend that every losing petition be automatically entitled to attorneys’ fees. See id. The court held that an expert opinion grounded in neither medical literature nor studies could not support a reasonable basis for the petition. Id. Importantly, while the court did not require
In the case at bar, the special master relied on references in the medical records to a vaccine injury. There were two. A medical record from a physician office visit dated June 3, 2008, stated that petitioner “[e]om-plains of blisters for past 4 days. History of advei’se reaction to vaccines one year ago and was hospitalized. Had severe lip swelling with throat swelling.” Pet’r’s Ex. 8 at 91. Another medical record from a physician’s office visit in 2009 noted that petitioner “had severe [reaction] to multiple injections.” Pet’r’s Ex. 5 at 2. These quotes appear to reflect statements made by petitioner to her doctors, not the doctors’ medical conclusions. Thus, as the special master noted, these quotes are potentially misleading insofar as “the medical records may have been incomplete and taken out of context.” McKellar, 2011WL 3425606 at *3.
In her opposition to the motion for review, petitioner points to three additional sources of support for the petition’s reasonable basis. The first is the VAERS report. There is no indication who filed it, or whose opinion it represents. While VAERS data may be useful to scientific researchers, the purpose of a VAERS report is not to establish causal connection, or any connection for that matter, between a vaccine and subsequent maladies. See Centers for Disease Control, Reports of Health Concerns Following HPV Vaccination, Vaccine Safety (Nov. 1, 2011), http:// www.cdc.gov/vaecinesafe ty/Vaccines/HPV/ gardasil.html. Furthermore, other judges and special masters of this court have been reluctant to rely on VAERS data.
Petitioner next points to a report from the Centers for Disease Control, entitled “Reports of Health Concerns Following HPV Vaccination.” This report notes that there have been VAERS reports filed after taking the HPV vaccine. The report cautions, however, that “VAERS data cannot be used to prove a causal connection between the vaccine and the adverse event. The only association between the adverse event and vaccination is temporal.... ” Id. The report makes no mention of petitioner’s major symptoms, namely stomatitis and other oral lesions. See id.
The final source, entitled “Analysis of Vaccine Adverse Events Reporting Systems Report: Part III,” is a document prepared by the National Vaccine Information Center, a non-governmental vaccine awareness organization. This document compiles and analyzes information gathered from VAERS reports, noting the frequency and potential correlation between the HPV vaccine and subsequent maladies. See National Vaccine Information Center, Analysis of Vaccine Adverse Events Reporting Systems Reports: Part III, http://www.nvic.org/vaceines-and-diseases/HPV/ HPV_Vaecine_Safety_Rept-Part.III_081507_rev.aspx (last revised Aug. 15, 2007). This report is a compilation of VAERS reports, which we note above are not sufficient alone to establish reasonable basis. Although the special master does not cite these documents in her decision, they apparently were cited to her by petitioner.
After discussing the presumption of good faith and, with no further transition, the spe
We read the special master’s opinion as applying the presumption of good faith to the independent inquiry into whether there was a reasonable basis for the petition. We agree with the government that this was legal error because it effectively shifted the burden to the government to show that the petition did not have a reasonable basis. The burden is on the petitioner to affirmatively demonstrate a reasonable basis. While we are normally obliged to defer to the special master’s discretionary findings that there was a reasonable basis behind the petition, see Saxton v. Secretary of Health & Human Services,
CONCLUSION
For the reasons stated above, we grant respondent’s motion for review. We reverse the decision of the special master, and remand for a renewed determination of petitioners’ application for attorneys’ fees and costs.
Notes
. According to the respondent, and without contest by petitioner, on February 18, 2010, petitioner’s counsel filed a petition for compensation under the Act. The respondent contacted petitioner's counsel and informed him that Ms. McKellar had already filed a pro se petition. Counsel’s petition was then dismissed on March 24, 2010. See Resp’t's Mem. Mot. for Rev. 4 & n. 4. These filings are not reflected on the court's electronic docket system, and are not relevant to our decision today.
. See Pet’r’s Reply to Resp't’s Opp’n. 8 ("Petitioner’s counsel intends to withdraw as counsel of record in this case.”).
. This represents the amount sought in the petition less an adjustment of $19.50, which the petitioner admitted was billed incorrectly. McKellar v. Sec'y Health & Human Servs., 09-841V,
. Petitioner submitted several exhibits to the special master, including medical records. "Pet’r's Ex.” refers to these exhibits.
. The record does not specify who filed the VAERS report. It merely noted that it was filed "on Katherine’s behalf.” See Pet’r’s Resp. to Resp’t’s Mot. for Rev. 13; see also infra at 303-04 discussing VAERS reports.
. Respondent's motion for review mentions Shaw in a footnote. It contends that Shaw's "procedural history did not provide respondent with a proper vehicle to challenge a broader interpretation of the availability of interim fees under Avera." Resp’t's Mot. for Rev. 10 n. 7. It is not clear why that is the case. In any event, Shaw is binding.
. Respondent’s argument that pre-entitlement interim fees are not permissible has been uniformly rejected by this court’s special masters. See Crutchfield v. Sec’y Health & Human Servs., No. 09-39,
. See Ryman v. Sec’y Health & Human Servs.,
. Petitioner neither provided nor cited to this report in the amended petition for compensation under the Act. Rather, this report came to light once the interim fees were challenged. Respondent stated at oral argument, and petitioner did not contest, that petitioner's law firm is connected to this organization.