Simmons v. Hhs , 875 F.3d 632 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
HENRY SIMMONS,
Petitioner-Appellant
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2017-1405
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-vv-00825-NBF, Senior Judge Nancy B.
Firestone.
______________________
Decided: November 7, 2017
______________________
JOSEPH PEPPER, Conway Homer, PC, Boston, MA,
argued for petitioner-appellant. Also represented by
RONALD C. HOMER.
VORIS EDWARD JOHNSON, JR., Vaccine/Torts Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by CHAD A. READLER, C. SALVATORE
D’ALESSIO, CATHARINE E. REEVES.
2 SIMMONS v. HHS
JENNIFER ANNE MAGLIO, Maglio Christopher & Toale
PA Law Firm, Sarasota, FL, for amici curiae Vaccine
Injured Petitioners Bar Association, The George Washing-
ton University Law School Vaccine Injury Litigation
Clinic.
______________________
Before PROST, Chief Judge, LOURIE and TARANTO,
Circuit Judges.
PROST, Chief Judge.
Appellant Henry Simmons appeals the decision of the
Court of Federal Claims (“Claims Court”), Simmons v.
Sec’y of HHS, 128 Fed. Cl. 579 (2016) (“Claims Court
Decision”), denying attorneys’ fees and costs for his vac-
cine case. Because the Claims Court properly concluded
that there was no reasonable basis for Mr. Simmons’s
claim, we affirm.
I
Mr. Simmons first contacted counsel in August 2011,
claiming that he developed Guillain-Barre Syndrome
(“GBS”) as a result of his October 26, 2010 flu vaccination.
He provided his vaccination record to counsel and counsel
agreed to represent him. After the August conversation,
counsel was unable to contact Mr. Simmons despite
making several attempts. In light of Mr. Simmons’s
failure to respond, counsel sent Mr. Simmons a letter in
March 2013 notifying him that their attorney-client
relationship had been terminated. The termination letter
was returned as undeliverable.
Then, on October 17, 2013, nearly two years after his
previous communication and shortly before the three-year
statute of limitations on his Vaccine Act claim might have
expired, Mr. Simmons contacted counsel’s firm and ex-
pressed that he would like to move forward with his
petition. Counsel spoke with Mr. Simmons one additional
SIMMONS v. HHS 3
time on October 21, 2013. The next day, on October 22,
2013, counsel filed Mr. Simmons’s petition for compensa-
tion. The petition did not include any medical records or
other supporting evidence showing that Mr. Simmons had
been diagnosed with GBS. In January 2014, the special
master ordered counsel to produce Mr. Simmons’s medical
records. Counsel informed the special master that coun-
sel had once again lost all contact with Mr. Simmons and
that despite making numerous attempts, they were
unable to acquire his medical records. The special master
dismissed the case for failure to prosecute.
After the special master dismissed Mr. Simmons’s pe-
tition, counsel filed two fee petitions seeking a total of
$8,267.89 in fees and costs. The special master found that
Mr. Simmons’s petition had been filed in good faith and
there was a reasonable basis for the claim. In particular,
the special master noted that because there was no direct
evidence of bad faith, counsel had satisfied the good faith
requirement. Further, the special master found that
counsel had satisfied the reasonable basis requirement
because Mr. Simmons “provided Counsel with a vaccina-
tion receipt”; “after consulting with Petitioner, Counsel
judged the claim potentially meritorious”; and “[w]hile
that alone may not have provided a reasonable basis for
filing a claim, Petitioner then disappeared for almost two
years and reemerged less than ten days before the statute
of limitations expired” at which point “[t]o not file a
petition . . . would be tantamount to an ethical violation.”
Simmons v. Sec’y of HHS, 2016 WL 2621070, at *3 (Fed.
Cl. Apr. 14, 2016) (“Special Master’s Decision”). On this
basis, the special master awarded the attorneys’ fees. Id.
The government appealed the special master’s deci-
sion to the Claims Court. On review, the court reversed
the special master’s decision, concluding that the special
master erred in finding that counsel had a reasonable
basis for Mr. Simmons’s claim. Claims Court Decision,
128 Fed. Cl. at 583. In particular, the Claims Court noted
4 SIMMONS v. HHS
that “[c]ounsel failed to produce any evidence, either at
the time the petition was filed or in the five months before
the special master dismissed the case for failure to prose-
cute, to support the claim that petitioner suffered from
GBS caused by his flu vaccine.” Id. Further, the Claims
Court held that “[t]he fact that the statute of limitations
was about to expire did not excuse counsel’s obligation to
show he had some basis for the claim beyond his conver-
sation with the petitioner.” Id. at 584.
On appeal to this court, Mr. Simmons’s counsel ar-
gues that the special master did not abuse her discretion
in awarding attorneys’ fees and that we should affirm her
award. The government, on the other hand, argues that
the special master’s rationale improperly conflated the
subjective good faith analysis with the objective reasona-
ble-basis inquiry. We have jurisdiction under 42 U.S.C.
§ 300aa–12(f). Because we agree with the government
that the special master conducted an improper reasona-
ble-basis inquiry, we affirm the Claims Court’s decision.
II
A
Under the Vaccine Act, an unsuccessful petitioner
may be awarded attorneys’ fees “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)(1) (emphasis added). As the Claims Court has
previously noted, “good faith and reasonable basis” are
“two distinct facets.” Chuisano v. United States, 116 Fed.
Cl. 276, 289 (2014). And “only ‘good faith’ is subjective;
‘reasonable basis’ is objective.” Id.
In cases brought under the Vaccine Act, we review a
decision of the special master to determine if it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Rodriguez v. Sec’y of HHS, 632
SIMMONS v. HHS 5
F.3d 1381, 1383–84 (Fed. Cir. 2011) (citing Avera v. Sec’y
of HHS, 515 F.3d 1343, 1347 (Fed. Cir. 2008)). “An abuse
of discretion may be found when (1) the court’s decision is
clearly unreasonable, arbitrary, or fanciful; (2) the deci-
sion is based on an erroneous conclusion of the law;
(3) the court’s findings are clearly erroneous; or (4) the
record contains no evidence upon which the court ration-
ally could have based its decision.” Hendler v. United
States, 952 F.2d 1364, 1380 (Fed. Cir. 1991). “‘Not in
accordance with the law’ refers to the application of the
wrong legal standard, and the application of the law is
reviewed de novo.” Rodriguez, 632 F.3d at 1384 (citing
Markovich v. Sec’y of HHS, 477 F.3d 1353, 1356 (Fed. Cir.
2007)).
B
In her attorneys’ fees decision, the special master con-
cluded that Mr. Simmons could receive attorneys’ fees
because the “Petitioner had a reasonable basis for submit-
ting his petition.” Special Master’s Decision, 2016 WL
2621070, at *3. In particular, she noted that while the
evidence of Mr. Simmons’s claim “alone may not have
provided a reasonable basis for filing a claim,” the fact
that “Petitioner then disappeared for almost two years
and reemerged less than ten days before the statute of
limitations expired” factored heavily into her analysis. Id.
According to the special master, counsel had a reasonable
basis for filing Mr. Simmons’s petition because “[t]o not
file a petition at that point . . . would be tantamount to an
ethical violation.” Id.
The government argues that this analysis is improper
because “by considering [the] attorney’s conduct as part of
the reasonable basis assessment, [the special master]
folded the subjective good faith provision into the reason-
able basis requirement, and effectively either rendered
the ‘good faith’ language [in § 300aa–15(e)(1)] superflu-
ous, or the ‘reasonable basis’ language meaningless.”
6 SIMMONS v. HHS
Appellee Br. 28. According to the government, “a looming
statute of limitations may excuse an attorney’s ethical
duty to investigate a claim prior to filing a Vaccine Act
petition, but that does not create a reasonable basis for
the claim in the petition.” Id. at 37.
We agree with the government’s argument. The Vac-
cine Act provides that there must be a “reasonable basis
for the claim for which the petition was brought” before
the special master may exercise her discretion in award-
ing attorneys’ fees. 42 U.S.C. § 300aa–15(e)(1) (emphasis
added). Whether there is a looming statute of limitations
deadline, however, has no bearing on whether there is a
reasonable factual basis “for the claim” raised in the
petition. That is an objective inquiry unrelated to coun-
sel’s conduct. Although an impending statute of limita-
tions deadline may relate to whether “the petition was
brought in good faith” by counsel, the deadline does not
provide a reasonable basis for the merits of the petition-
er’s claim. Id.
Mr. Simmons’s counsel argues that the government’s
position is inconsistent with our decisions in Cloer v.
Secretary of HHS, 654 F.3d 1322, 1325 (Fed. Cir. 2011)
(en banc) (“Cloer I”) and Cloer v. Secretary of HHS, 675
F.3d 1358, 1362 (Fed. Cir. 2012) (en banc) (“Cloer II”).
Reply Br. 8–9. In Cloer I, we addressed Dr. Cloer’s peti-
tion for compensation under the Vaccine Act and in
Cloer II, we addressed her motion for attorneys’ fees. We
held in Cloer I that the Vaccine Act’s statute of limita-
tions is not jurisdictional and that some claims brought
under the Vaccine Act are subject to equitable tolling.
654 F.3d at 1344. In Cloer II, we held that because the
statute of limitations is not jurisdictional, a petitioner
may receive attorneys’ fees even for an untimely petition
so long as “the petition was brought in good faith and
there was a reasonable basis for the claim for which the
petition was brought.” 675 F.3d at 1360. In this context,
we explained that this “statute of limitations issue,” i.e.,
SIMMONS v. HHS 7
whether a petitioner can receive attorneys’ fees despite
filing a petition after the statute of limitations has ex-
pired, may be encompassed within the reasonable basis
inquiry, along with “the underlying merits of the claim.”
Id. at 1362. We therefore held that “[a] petitioner who
asserts an unsuccessful but nonfrivolous limitations claim
should be eligible for a determination of whether reasona-
ble attorneys’ fees and costs . . . should be awarded.” Id.
at 1364.
Unlike in Cloer II, the issue here is not whether coun-
sel had a reasonable basis for Mr. Simmons’s claim de-
spite the expiration of the statute of limitations. Instead,
the issue here is whether counsel may establish a reason-
able basis for the merits of Mr. Simmons’s claim based on
the fact that there was an impending statute of limita-
tions deadline. We conclude that counsel may not use this
impending statute of limitations deadline to establish a
reasonable basis for Mr. Simmons’s claim. Because the
special master only found that there was a reasonable
basis for Mr. Simmons’s claim because of the impending
statute of limitations deadline, we conclude that she
abused her discretion by misapplying the law. According-
ly, we affirm the Claims Court’s decision.
AFFIRMED