Amanda Newby v. HHS - DPT, encephalopathy and seizures resulting in psychomotor retardation and cerebral palsy (1998)

Amanda Newby filed a petition on October 1, 1990, seeking compensation under the National Vaccine Injury Compensation Program for encephalopathy and seizures resulting in psychomotor retardation and cerebral palsy, which she alleged were caused by a diphtheria-pertussis-tetanus (DPT) vaccine administered on December 26, 1985. In order to avoid dismissal, the special master ordered petitioner to develop the factual and medical basis for her claim.

On March 7, 1994, petitioner voluntarily dismissed her petition. No compensation was awarded on the merits.

Following the voluntary dismissal, petitioner's attorney, Rodney A. Klein, filed an application for attorneys' fees and costs on March 17, 1998.

The application noted that at the time of filing, petitioner and counsel were no longer in communication, which had prevented compliance with General Order No. 9 requiring a joint statement from petitioner and counsel identifying the costs attributable to each. Special Master John F.

Edwards issued a decision on March 27, 1998, directing that $4,005.98 in attorneys' fees be paid solely to petitioner's attorney. In reaching this result, the special master relied on a prior special master's decision in Heston v.

Secretary of HHS, No. 90-3318V (Fed. Cl.

Spec. Mstr.

Oct. 3, 1997). Respondent moved for review, arguing that fees must be directed to the petitioner, not to counsel.

Respondent's position was strengthened by the fact that the Heston special master's decision had since been overturned. Judge Andewelt, reviewing Heston at the CFC level, had ruled in Heston v.

Secretary of DHHS, 41 Fed.Cl. 41 (1998), that the special master "erred as a matter of law when he determined that he had the authority to issue compensation covering attorneys' fees and costs directly to counsel." Judge Miller, writing for the Court of Federal Claims, agreed. The court analyzed the relevant Vaccine Act provisions and held that sections 300aa-15(a) and (b) unambiguously direct that all compensation under the Program — including attorneys' fees — be awarded "to a petitioner," not to counsel.

Section 300aa-15(b)(3) expressly incorporates section 300aa-15(e) as one of the compensation components payable to petitioner, meaning that even the stand-alone attorneys' fee provision in section 15(e) is subject to section 15(b)'s requirement that payments run to the petitioner. Although section 15(e) permits a fee award even when no other compensation is awarded — as in this case, where the petition was voluntarily dismissed — it does not give the special master discretion to redirect the payment to counsel.

The court overturned the special master's fee award and remanded the case to the special master for a fee decision consistent with the opinion. The note on the available document does not reflect the final outcome of the remanded fee proceedings.