R.k., L.k., on Behalf of, A.k., Aminor v. Secretary of Health and Human Services

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
R.K., L.K., ON BEHALF OF, A.K., A MINOR,
Petitioners-Appellants
v.
SECRETARY OF HEALTH AND HUMAN
SERVICES,
Respondent-Appellee
______________________
2018-1738
______________________
Appeal from the United States Court of Federal Claims
in No. 1:03-vv-00632-SGB, Senior Judge Susan G. Braden.
______________________
Decided: March 15, 2019
______________________
J OHN F RANCIS MC HUGH , Law Office of John McHugh,
New York, NY, argued for petitioners-appellants.
HEATHER L YNN P EARLMAN, Vaccine/Torts Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by J OSEPH H. HUNT , C. SALVATORE D'ALESSIO, G ABRIELLE
M. F IELDING, CATHARINE E. REEVES .
______________________

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R. K. v. HHS 2
Before P ROST , Chief Judge, L OURIE and STOLL , Circuit
Judges.
STOLL , Circuit Judge.
BACKGROUND
In 2003, Robert and Lori Krakow filed a petition on be-
half of their son, A.K., for compensation under the National
Childhood Vaccine Injury Act. They alleged that two pedi-
atric doses of influenza vaccine caused A.K.’s severe devel-
opmental issues (diagnosed as autism spectrum disorder).
Special Master Vowell held an entitlement hearing on
April 30, 2013, and issued a decision denying entitlement
on September 28, 2015. In an exhaustive opinion, Special
Master Vowell discussed a multitude of factual issues and
concluded that causation was not established by prepon-
derant evidence. The Court of Federal Claims denied the
Krakows’ motion for review on December 18, 2015. The
Krakows then appealed to this court, arguing (1) that the
arbitrary and capricious standard used by this court to re-
view factual findings in Vaccine Act cases is unconstitu-
tional, and (2) that they had demonstrated causation under
any standard of review. On December 9, 2016, we affirmed
the judgment of the Court of Federal Claims under Federal
Circuit Rule 36. R.K. v. Sec’y of Health & Human Servs.,
671 F. App’x 792 (Fed. Cir. 2016).
While the case was proceeding, the Krakows were
awarded interim attorneys’ fees and costs totaling
$459,108.12. This amount covered work performed
through the April 30, 2013 entitlement hearing. On
May 15, 2017, the Krakows filed a motion for final attor-
neys’ fees and costs, requesting an additional $683,926.13
for work performed between the conclusion of the entitle-
ment hearing and the filing of the fee motion. The request
included fees and costs associated with post-hearing mo-
tions, the motion for review before the Court of Federal
Claims, the appeal to this court, and the fee request mo-
tion.

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R. K. v. HHS 3
On August 31, 2017, a second special master issued his
decision awarding $225,702.10 in fees and costs. R.K. v.
Sec’y of Health & Human Servs., No. 03-vv-632 (Fed. Cl.
Spec. Mstr. Aug. 31, 2017) (“Fee Decision”). The special
master found that the Krakows’ appeal of the entitlement
decision to this court lacked a reasonable basis and thus
declined to award any fees and costs associated with that
appeal.1 Id. at 9. Specifically, he determined that the Kra-
kows’ constitutional challenge to this court’s arbitrary and
capricious standard of review had no reasonable basis. Id.
at 8. He also determined that the Krakows’ challenge to
Special Master Vowell’s factual findings, under any stand-
ard of review, was highly unlikely to be successful. Id. at 9.
The Court of Federal Claims denied the Krakows’ motion
to review the special master’s decision. R.K. v. Sec’y of
Health & Human Servs., No. 03-vv-632 (Fed. Cl. Jan. 26,
2018) (“Review Decision”). The Krakows then appealed to
this court, arguing that their constitutional and factual
challenges in the entitlement appeal had a reasonable ba-
sis. We have jurisdiction under 28 U.S.C. § 1295(a)(3) and
42 U.S.C. § 300aa-12(f).
D ISCUSSION
“Under the Vaccine Act, this court reviews a decision of
the special master under the same standard as the Court
of Federal Claims and determines if it is ‘arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.’” Rodriguez v. Sec’y of Health & Human Servs.,
632 F.3d 1381, 1383–84 (Fed. Cir. 2011) (quoting Avera v.
Sec’y of Health & Human Servs., 515 F.3d 1343, 1347
(Fed. Cir. 2008)). We review a special master’s fact find-
ings under the arbitrary and capricious standard. Milik v.
Sec’y of Health & Human Servs., 822 F.3d 1367, 1378–79
(Fed. Cir. 2016). “We review discretionary rulings under
1 The special master also reduced the fee award for
other reasons not at issue in this appeal.

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R. K. v. HHS 4
the abuse of discretion standard.” Masias v. Sec’y of Health
& Human Servs., 634 F.3d 1283, 1288 (Fed. Cir. 2011).
We agree with the Court of Federal Claims that the
special master did not abuse his discretion in declining to
award fees and costs associated with the Krakows’ appeal
of the entitlement decision to this court. See Review Deci-
sion at 10–11. A claim can lose its reasonable basis as the
case progresses. See Perreira v. Sec’y of Dep’t of Health &
Human Servs., 33 F.3d 1375, 1376–77 (Fed. Cir. 1994)
(holding that an award of fees and costs was not authorized
for work performed on a case after a claim lost its reasona-
ble basis). Under the particular circumstances in this case,
we cannot say that the special master erred in determining
that a reasonable basis failed to exist after the Court of
Federal Claims issued an opinion finding no error with the
special master’s factual findings and weighing of the evi-
dence.
It was reasonable for the special master to determine
that the Krakows’ challenge to Special Master Vowell’s fac-
tual findings lacked a reasonable basis in light of this
court’s highly deferential standard of review and Special
Master Vowell’s exhaustive 219-page opinion assessing
and weighing the evidence. It was also reasonable for the
special master to determine that the Krakows’ constitu-
tional challenge of this court’s arbitrary and capricious
standard of review had no reasonable basis. This court’s
Milik decision addresses this very argument and issued
seven days prior to the filing of the opening brief in the en-
titlement appeal. See Brief for Petitioners-Appellants,
R.K. v. Sec’y of Health & Human Servs., 2016 WL 3090232
(Fed. Cir. May 27, 2016). In Milik, this court confirmed
that the arbitrary and capricious standard—which this
court had applied for 25 years—was the correct standard
to apply when reviewing factual findings in Vaccine Act
cases. 822 F.3d at 1378–79. It is undisputed that the Kra-
kows were aware of the Milik holding and nonetheless con-
tinued to raise their constitutional challenge on appeal.

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R. K. v. HHS 5
While we conclude that the special master did not
abuse his discretion here, we disagree with the special
master’s statement that a Rule 36 affirmance by this court
constitutes “some evidence that petitioner’s appeal lacked
a reasonable basis in the first instance.” Fee Decision at 8.
A Rule 36 affirmance does not speak at all to whether a
claim had a reasonable basis. It “simply confirms that the
trial court entered the correct judgment.” Rates Tech., Inc.
v. Mediatrix Telecom, Inc., 688 F.3d 742, 750 (Fed. Cir.
2012). It was thus inappropriate for the special master to
factor in this court’s Rule 36 judgment when deciding
whether the entitlement appeal had a reasonable basis.
Because the special master acknowledged that this factor
was not dispositive, however, we deem this error harmless.
We do not hold that all appeals to this court challeng-
ing a special master’s factual findings lack a reasonable ba-
sis. We conclude only that, in this particular case, the
special master did not abuse his discretion in declining to
award fees and costs associated with the entitlement ap-
peal to this court.
CONCLUSION
We affirm the judgment of the Court of Federal Claims.
AFFIRMED
COSTS
No costs.

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