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Attorneys' Fees Denied for Last-Minute Filing

By William Vogeler, Esq. on November 07, 2017 | Last updated on March 21, 2019

When it comes to attorneys' fees, some good deeds go unpaid.

Counsel for Henry Simmons, who suffered from Guillain-Barre Syndrome, learned that lesson the hard way. After the attorney filed a last-minute claim under a federal statute, the client disappeared and the case was dismissed.

The lawyer filed a petition for attorneys' fees, which were allowed under the law. But a federal appeals court said the claim was not reasonable -- even though the attorney had to file the case if only to preserve the statute of limitations.

Statute of Limitations

In Simmons v. Secretary of Health and Human Services, the appellate court affirmed. Citing an underlying court decision, the panel said the attorney failed to produce any evidence to support the claim.

"The 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 conversation with the petitioner," the Claims Court said.

It was a financial blow to Simmons and his lawyer because a special master had previously approved $8,267.89 for attorneys' fees. But the government appealed, contending that it should not have to pay for a hastily-filed petition that was dismissed without proof of the claim.

The appeals court agreed, concluding the special master mixed up the standard for "reasonable" claims.

Vaccine Act

Under the National Vaccine Injury Compensation Program, an unsuccessful claimant may be awarded attorneys' fees if the court concludes a claim was made in good faith and there was a reasonable basis for the claim.

The government argued that 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."

Given the attorney did not prove a basis for the claim, the U.S. Court of Appeals for the Federal Circuit agreed.

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