Vaccine Rule 14 has been amended

to reflect the changes adopted in RCFC 83.1. Appendix B 140 SUPPLEMENT TO APPENDIX B ELECTRONIC FILING PROCEDURES IN VACCINE ACT CASES I. INTRODUCTION In General. This Supplement sets forth the in 1. procedures governing electronic Vaccine Act cases. For 2. Definitions. Supplement, the following definitions apply: purposes filings this of (a) “ECF System” means the court’s online system for electronic case filing; (b) “ECF case” means a Vaccine Act case designated by the clerk as an electronic case in which all filings in the case are made via the ECF System; (c) “Non-ECF case” means a Vaccine Act case designated by the clerk as a pro se case in which the pro se litigant cannot be granted access to file documents electronically via the ECF System; (d) “Filing User” means an individual to whom the court has granted access to file documents electronically via the ECF System; (e) “filing” means any document that is filed electronically via the ECF System or via e-mail by a pro se litigant; and (f) “court” means the assigned judge or the assigned special master. II. CASE DESIGNATION AND NOTICE 3. Scope. (a) In General. All newly filed Vaccine Act cases will be designated ECF cases involving pro se except for cases litigants. (b) Pro Se Cases. All newly filed pro se Vaccine Act cases will be designated non-ECF cases. 4. Notice. The clerk will notify counsel and pro se litigants that a Vaccine Act case has been designated an ECF case or a non-ECF case by filing a “Notice of Designation.” III. ACCESS TO FILE DOCUMENTS VIA THE ECF SYSTEM; RESPONSIBILITY OF FILING USERS; EXEMPTION FROM USE 5. Access. (a) Applications. Applications for access to file documents electronically via the ECF System are submitted through PACER to Court Electronic (Public Access Records) at www.pacer.gov, and will be granted to an attorney who is admitted to the bar of this court. Because of the restricted nature of Vaccine Act cases, pro se litigants cannot be granted access to file documents electronically via the ECF System. (b) Notification. The clerk will notify a Filing User when access to file via the ECF System has been granted. 6. Use of ECF Account. No Filing User or other person may knowingly permit or cause a Filing User’s login and password to be used by anyone other than an authorized agent of the Filing User. Any Filing User or other person may be subject to sanctions for failure to comply with this provision. 7. Exemption From Filing Electronically in an ECF Case. By filing an appropriate motion, a Filing User or an attorney not yet registered as a Filing User may, for good cause, seek to be exempted from filing documents electronically into an ECF case and to convert the case into a non-ECF case. IV. FILING REQUIREMENTS IN NON- 8. Case Initiating Documents. ECF CASES (a) In General. Vaccine Act petitions, along with the required filing fee or an application to proceed in forma pauperis, and any attachments required under Vaccine Rule 2(c)(2), must be submitted in paper form in compliance with RCFC 5.5 by mail or other delivery to: Clerk United Stated Court of Federal Claims 717 Madison Place, NW Washington, DC 20439 141 Supplement to Appendix B found on A copy of the applicable schedule of fees may be the court’s website at www.uscfc.uscourts.gov or may be obtained from the clerk’s office. (b) Service. Vaccine Act petitions must include a certificate of service indicating that one copy of the petition and accompanying documents has been served on the Secretary of Health and Human Services pursuant to Vaccine Rule 2(e)(1). For electronic service, visit the at www.uscfc.uscourts.gov. 9. Filings in Pending Non-ECF Cases. website court’s (a) ECF Filings. The court, the clerk, and counsel of record for the United States must file via the ECF System in Non- ECF cases. (b) Filings by Pro Se Litigants. (i) In General. Pro se litigants may submit case filings in paper form or via to e-mail [email protected]. All filings must conform to the format requirements of RCFC 5.5. (ii) Format of Filings via E-Mail. (A) All documents submitted via e- mail must be attached to the e- in Portable Document mail Format (“PDF”). The e-mail subject line must include the case name and docket number for which the submission is intended. (B) Each e-mail submission must be limited to a document that is clearly identified as a filing pursuant to a court rule or in response to a court order. (C) Only the contents of the attached PDF file will be considered part of the submission and processed by the clerk. Any content in the body of the e-mail will not be reviewed by the clerk or considered for inclusion in the case record. (D) If a document, including exhibits and attachments, exceeds 50 pages when printed, the pro se litigant must supply a courtesy copy of the document in paper form in accordance with RCFC 5.5(c), unless otherwise ordered by the court. (iii) Signatures on Filings via E-Mail. (A) To the satisfy signature requirements of RCFC 11, e- mailed submissions must include either a written or an electronic signature (s/[name of pro se litigant]). (B) Pro se litigants may not file documents via e-mail on behalf of any other person. (iv) Revocation of E-Mail Filing Privileges. E-mail filing privileges may be revoked by the court at any time. V. FILING REQUIREMENTS IN ECF CASES 10. Filings. (a) Initial Filings. (i) The Petition. The filing of a Vaccine Act petition and the payment of the initial be accomplished in accordance with Vaccine Rule 2. fee may filing (ii) Required Attachments. The petition must be accompanied by the medical records and other documents (including affidavits) pertaining to the petition as set forth in Vaccine Rule 2(c)(2). (See paragraph 13 of this Supplement, discussing the filing alternative method voluminous medical records via a portable storage disc or drive.) (b) Subsequent Filings. Once a case has been designated an ECF case, all subsequent filings must be made via the ECF System, except as provided in this Supplement or by leave of the court in exceptional circumstances that prevent a Filing User from filing via the ECF System. of (c) Exhibits and Attachments. Unless otherwise ordered by the court, when filing an exhibit or attachment, a Filing User: Supplement to Appendix B 142 (i) must file the exhibit or attachment via the ECF System along with the main document under one entry number; (ii) must include the exhibit or attachment in its entirety; and (iii) may to file seek a leave memorandum or brief, generally in advance of the evidentiary hearing, to direct the court’s attention to the most relevant portion of the exhibit or attachment. 11. Technical Requirements. (a) Format. (i) In General. Documents filed via the containing ECF System must be: (A) converted into PDF; and (B) text searchable. The ECF System will not accept PDF files tags, commands, embedded access password restrictions, security features, special tags, or dynamic features. system protections, other or tracking (ii) Scanned Documents. (A) Documents filed via the ECF System must not be scanned prior to filing unless the original documents are unavailable in electronic form. (B) A Filing User is responsible for and the scanned accuracy of a ensuring readability document. (b) Size Limitations. (i) In General. A single filing may be divided into multiple PDF files. (ii) Number of Files. Counsel must endeavor to limit the total number of PDF files that constitute a single filing. All files, however, must comply with the requirements of paragraph 12(a) below. (iii) Size of Files. (A) Unless otherwise ordered by the court, each PDF file must not limitation the exceed established by the court. size (B) The current size limitation is posted on the court’s website or may be obtained by calling the clerk’s office. (iv) Exceeding the Size Limitation. For files that exceed the size limitation and cannot be divided into multiple PDF files, the Filing User may: (A) use a portable storage disc or drive; or (B) seek leave of the court to file in some other electronic format. (c) Events. Events are used in the ECF System for filing documents and creating docket entries on the docket sheet. A Filing User: (i) must select an event or events for each filed document based on the purpose of the document or relief requested; and (ii) should use the most specific event available rather than a more generic event. (d) Linking Filings. A document filed via the ECF System—such as a response or reply—that pertains to a motion or other filing must be linked properly in the ECF System to the filing to which it pertains. 12. Dividing Medical Records into Multiple PDF Files. (a) Contents and Pagination of Files. Each file should contain one exhibit and each exhibit independently paginated (hand-written pagination prior to scanning is sufficient). should be (b) Labeling and Identifying Files. Each file should: (i) be consecutively numbered or lettered as an exhibit; (ii) be labeled according to its source or subject matter; and (iii) include a brief written description of the records it contains. For example, the first PDF file might contain prenatal records and be labeled “Petitioner’s 1–Prenatal Exhibit Records, Dr. Smith”; the second PDF file might contain birth records and be labeled “Petitioner’s Exhibit 2–Birth Records, Smalltown Hospital”; the third and fourth PDF files might contain pediatric records of different physicians and be labeled “Petitioner’s Exhibit 3– 143 Supplement to Appendix B Pediatric Records, Dr. “Petitioner’s Records, Dr. Jack.” Exhibit John” and 4–Pediatric VI. FILING PROCEDURES 13. Filings Via Portable Storage Discs and Drives. (a) In General. Filing documents on a is portable storage disc or drive accomplished by: (i) filing a “Notice of Intent to File” containing: (A) an index of the exhibits included on the disc or drive; (B) a statement certifying that the contents of the disc or drive have been scanned using anti-virus software with up-to-date anti- virus definitions; and (C) a certificate stating when a copy of the disc or drive was mailed or delivered to the clerk’s office; (ii) providing the clerk’s office with one copy of the disc or drive along with a printed copy of the “Notice of Intent to File”; and (iii) serving one copy of the disc or drive on opposing counsel. (b) Date of Filing. The disc or drive is deemed filed on the date it is received in the clerk’s office. (c) Striking a Notice of Intent to File. If the disc or drive is not received in the clerk’s office within 5 days after the “Notice of Intent to File” is docketed via the ECF System, the court may enter an order striking the “Notice of Intent to File” from the docket. (d) Designation of Files. The name of each file on the disc or drive should: (i) begin with the letters “Ex” followed by the exhibit letter or number (e.g., 01, 02, . . . 09, 10); (ii) include a brief description of the content of the exhibit and the six- digit docket number (e.g., 98-0000); (iii) represent spaces with an underscore; and (iv) contain “.pdf” as the file extension. drive For example, the first PDF file on the disc or labeled might “EX01_University_Hospital_98- 0000.pdf.” be (e) Format. Before filing a disc or drive, the filing party should: (i) “close” or finalize the disc or drive so that additional material cannot be written onto the disc or drive; and (ii) scan the disc or drive using appropriate anti-virus software after its creation and closure. (f) Packaging and Labeling. The disc or drive should be packaged in a paper, plastic, or waxed paper envelope and labeled with: (i) the case caption, including the case number; (ii) the date of filing; and (iii) the range of exhibits the disc or drive contains (e.g., Exhibits 01-20). 14. Notice of Filing; Service. (a) ECF Cases. (i) Notifying the Parties. At the time a document is filed, the ECF System automatically generates a “Notice of Electronic Filing” and automatically e-mails the notice to all parties. (ii) Service. The transmission of the “Notice of Electronic Filing” satisfies the service requirement of RCFC 5 and the proof of service requirement of RCFC 5.3. (b) Non-ECF Cases. (i) Notification of Filings. A pro se litigant may consent to receive notice of all filings via e-mail by filing an E-Notification Consent Form in each active Vaccine Act case before the court (see Appendix of Forms, Form 15B). (ii) Service. (A) Service by Pro Se Litigants. A pro se litigant filing in paper form or via e-mail need not separately serve his or her filings on opposing counsel. Opposing counsel will be served when a filing is entered by the clerk in the ECF System. Supplement to Appendix B 144 (B) Service by E-Mail on Pro Se Litigants. If a pro se litigant has filed an E-Notification Consent Form: (I) the pro se litigant consents to having his or her e-mail address entered into the ECF System to receive notice of electronic filings; (II) because of the satisfy the restricted nature of Vaccine Act cases, to service requirement of RCFC 5, the clerk and opposing counsel must serve the pro se litigant via separate e-mail with a PDF copy of each filing; the proof of (III) to satisfy of requirement service RCFC opposing 5.3, counsel must attach to each filing, or file within a reasonable after service, a certificate of service pursuant to RCFC 5(d)(1)(B) and Vaccine Rule 17(a)(2); and time (IV) the pro se litigant waives service by first class mail. (C) Service by First Class Mail on Pro Se Litigants. If a pro se litigant has not consented to electronic service by filing an E- Notification Consent Form: (I) the clerk will serve the litigant with all court-issued filings by first class mail; and (II) opposing counsel must serve the litigant with all of opposing counsel’s filings in a manner listed in RCFC 5(b) and attach to each file within a filing, or reasonable after service, a certificate of service pursuant to RCFC 5(d)(1)(B) and Vaccine Rule 17(a)(2). time 15. Effect of Filing. together with (a) ECF Cases. A filing by a party via the ECF System, the transmission of the “Notice of Electronic Filing,” constitutes a filing under RCFC 5 and an entry on the docket kept by the clerk under RCFC 58 and 79. (b) Non-ECF Cases. A document submitted by a pro se litigant via e-mail or in paper form constitutes a filing under RCFC 5 once entered by the clerk in the ECF System. 16. Official Court Record. The official court record is the electronic recording of the document in the ECF System as stored by the court and the filing party is bound by the document as filed. 17. Date of Filing. (a) ECF Cases. A document filed in an ECF case is deemed filed on the date and time stated in the “Notice of Electronic Filing.” (b) Non-ECF Cases. A document submitted by a pro se litigant via e-mail or in paper form is deemed filed on the date and time received by the clerk or, if not in compliance with the court’s rules, on the date and time filed by leave of the judge or special master. 18. Timeliness of Filing. Unless otherwise ordered by the court, an electronic filing under this Supplement must be submitted before midnight local time in Washington, DC, to be considered timely filed on that date. 19. Date Stamp. The filing date of each filing in the ECF System will appear at the top of the first page in an automatically generated banner stating the case number, the document number, and the date filed. VII. SIGNATURES AND RELATED MATTERS IN ECF CASES 20. Signature Defined. A Filing User’s login and password will serve as his or her signature on a filing for all purposes, including those under RCFC 11. 21. Signature Requirements. (a) Electronic Signature. Filings must include a signature block, in compliance with RCFC 11(a), with the name of the Filing User under whose login and 145 Supplement to Appendix B password the document is submitted along with an “s/[name of Filing User]” typed in the space where the signature would otherwise appear. (b) Written Signature. A Filing User may also satisfy the signature requirement by scanning a document containing his or her written signature. (c) Noncompliance. A filing that does not comply with this provision will be deemed in violation of RCFC 11 and may be stricken from the record. 22. Signatures of Multiple Parties. Documents requiring signatures of more than one party may be filed via the ECF System: (a) by submitting a scanned document necessary written all containing signatures; or (b) by submitting a document containing an electronic signature for each party (“s/[name of party]”) and the filing attorney’s representation that the other parties have reviewed the document and consent to its filing. VIII. COURT ORDERS AND JUDGMENTS 23. Filings by the Court. Any order, opinion, judgment, or other proceeding of the court will be filed in accordance with this Supplement. 24. Effect of Filing. A filing by the court under this Supplement: (a) is an entry on the docket kept by the clerk under RCFC 58 and 79; and (b) has the same force and effect as a paper copy entered on the docket in the traditional manner. 25. Notice of Filing; Service. (a) Notifying the Parties. Notice of a filing by the court will be accomplished in the manner prescribed in paragraph 14 of this Supplement. (b) Service. Service of a filing by the court in a manner this will be accomplished prescribed Supplement. in paragraph 14 of 26. Court-Ordered Deadlines. If an order or opinion specifies a due date for the filing of a document, that date will control over any other Supplement to Appendix B 146 filing deadline listed on the docket for that document. IX. PRIVACY Protected Against 27. Filings Public Disclosure. Except as provided in Vaccine Rule 18, all filings submitted in a Vaccine Act case are restricted pursuant to the requirement of 42 U.S.C. § 300aa-12(d)(4)(A) and therefore are accessible only to court personnel and the parties to the case. 28. Personal Information. Because all filings submitted by the parties in a Vaccine Act case are restricted, counsel and pro se litigants need not redact personal identifiers and other sensitive information. All documents, including medical records, should be filed in their original form. X. PUBLIC ACCESS; TECHNICAL FAILURE; HYPERLINKS 29. Reviewing Filings. Except as provided in Vaccine Rule 18, all filings in Vaccine Act cases are restricted pursuant to 42 U.S.C. § 300aa- 12(d)(4)(A) and therefore are not accessible to the public either in the clerk’s office or via the ECF System. 30. Technical Failure of the ECF System. (a) Relief by Motion. If a filing via the ECF System is deemed untimely as the result of a technical failure of the ECF System, the Filing User may seek appropriate relief from the court. (b) Deeming the Clerk’s Office Inaccessible. If the ECF System is inaccessible for any significant period of time, the clerk will deem the clerk’s office inaccessible under RCFC 6. 31. Hyperlinks. (a) Type. Filings via the ECF System may of contain hyperlinks: (i) hyperlinks to other portions of the following types the same document; (ii) hyperlinks to documents already filed via the court’s ECF System; and (iii) hyperlinks to a location on the that contains a source Internet document for a citation. (b) Cited Authority. Hyperlinks to cited authority may not replace standard citation format. Complete citations must be included in the text of the filed document. (c) Limitation. Neither a hyperlink, nor any site to which it refers, will be considered part of the record. Hyperlinks are simply convenient mechanisms for accessing material cited in a filed document. If a party wishes to make any hyperlinked material part of the record, the party must include the material as an attachment to the filing. (d) Disclaimer. The court accepts no responsibility for, and does not endorse, any product, organization, or content at any hyperlinked site, or at any site to which that site may be linked. The court accepts no the availability or functionality of any hyperlink. responsibility for The Supplement Rules Committee Notes 2011 Adoption the Vaccine Rules to replaces former Office of Special Master’s General Order No. 13 (“Procedure for Electronic Case Filing in Vaccine Act Cases”), issued on January 2, 2008, and amended on October 16, 2008, and establishes electronic case filing as a mandatory procedure applicable to all newly filed Vaccine Act cases except for those cases involving pro se litigants. 2015 Amendment Paragraph 4 has been amended by deleting the statement that all ECF cases will be listed on the court’s website. Paragraph 8(a) has been amended to allow a petitioner not appearing pro se to file a petition and the required attachments electronically. Former paragraph 25 has been deleted as unnecessary. 2016 Amendment Paragraph 9(b) has been amended to clarify that a single filing may not exceed 11 separate Adobe PDF files. In addition, Paragraph 12 has been amended by deleting as no longer necessary former paragraph 12(b) which provided that the clerk “will serve the ‘Notice of Electronic Filing’ (but not the underlying filing) on case participants who are not Filing Users by e-mail, hand delivery, facsimile, or first-class postage prepaid mail.” Paragraph 17 also has been amended to clarify the ECF system automatically generates a filing date stamp at the top of the first page of each filing. that Finally, paragraph 23(a) has been amended to delete the reference to former paragraph 12(b). 2017 Amendment Paragraph 9(b) has been amended to remove the specific limitation on the number of Adobe PDF files that constitute a single filing, while maintaining the requirement of paragraph 10(a) that each PDF file contain only one exhibit. 2019 Amendment Paragraph 20 has been amended to clarify that a document requiring the signature of more than one party must contain either a scanned written signature of each party or an electronic signature of each party along with the filing attorney’s representation that the other parties have reviewed the document and consent to its filing. 2020 Amendment Paragraph 2(c) has been amended to define a Filing User as an individual, rather than as a member of the court’s bar, to whom the court has granted access to file documents electronically in the ECF System. to for access Paragraph 5 has been amended to reflect that applications file documents electronically in the ECF System are submitted through PACER and that access may be granted to an individual who is not represented by an attorney only if allowed or so required by court order. Paragraph 9 has been amended to include to additional document format, event selection, and linking filings. technical requirements related In addition, paragraphs 9(b), 11 and 15 have been amended to substitute the phrase “a portable storage disc or drive” for all references to a CD- ROM. 147 Supplement to Appendix B Finally, new paragraph 29 has been added to address hyperlinks in filings. 2023 Amendment The Supplement to Appendix B has been amended to require the court, the clerk, and counsel of record for the United States to file via the ECF System in non-ECF cases, and to provide pro se litigants with alternative means of submitting filings and receiving notice of filings electronically. 2024 Amendment Paragraph 13 (“Filings Via Portable Storage Discs and Drives”) has been moved from Section V (“Filing Requirements for ECF Cases”) to Section VI (“Filing Procedures”) because its provisions are applicable to both ECF and non- ECF cases. Supplement to Appendix B 148 SECOND SUPPLEMENT TO APPENDIX B ATTORNEY’S FEES AND COSTS 1. Attorney’s Fees. The following materials are necessary to substantiate a request for attorney’s fees: (a) Contemporaneous time sheets attorney invoices showing how many hours were billed on a specific task, and at what hourly rate. (i) Number of Hours. (A) Whether hours devoted to a matter are “reasonable” is a subjective inquiry involving the nature of the work performed as well as the expertise of the the professional performing work. The special master or the court may reduce or exclude excessive, hours otherwise redundant, unnecessary. are or that (B) Each individual task should have its own entry indicating the amount of time dedicated to that task. Time should be billed in increments of one-tenth of an hour. (ii) Hourly Rate. (A) A newly proposed hourly rate may be found reasonable where it is substantiated by an affidavit of the attorney which includes, but is not limited to, the years and the breadth of experience of the attorney as a member of the bar of any other jurisdictions, experience as an attorney in the Vaccine Program, and local billing rates, if applicable. (B) Unless requesting a rate for a new calendar year, the attorney must refrain from billing at that have not hourly previously been awarded. Once a reasonable rate for a year has been established, it will not be increased during the same year. (C) The OSM Forum Hourly Rate Fee Schedules can be found on the court’s website. Hourly rates rates (b) If billed by the attorney, assuming the attorney is entitled to forum rates, should conform to the ranges listed therein. not petitioner the good whether of awarded is compensation, the fees motion must statutory address requirements and reasonable basis have been met, keeping in mind the following: (i) whether a claim is brought in good faith is a subjective inquiry to be determined by the special master and the court; and faith (ii) whether a claim has reasonable basis is an objective determination, requiring record reference evidence. Reasonable basis must exist at each stage in a case; a case that once had reasonable basis may lose that designation after further development. to 2. Attorney’s Costs. The following materials are required to substantiate a request for attorney’s costs: (a) an itemized list of all costs incurred in the Vaccine Program proceeding; and (b) supporting documentation for each cost in the form of invoices, receipts, account statements, or any other document petitioner reasonably believes will fully substantiate the requested cost. If petitioner retains an 3. Expert Costs. individual to provide expertise in the case and seeks reimbursement for this cost, the same requirements pertaining to attorney’s fees in paragraph 1(a)(i) above apply. It is incumbent on petitioner these inform requirements. The requirements include: their expert of to (a) contemporaneous time sheets showing how many hours were billed on a specific task multiplied by a proposed hourly rate; and (b) any other information petitioner deems the necessary reasonableness of the work for which reimbursement is being sought. substantiate to 149 Second Supplement to Appendix B 4. Petitioner’s Personal Costs. In every case in which fees and costs are sought, petitioner must file: (a) a statement signed by petitioner and petitioner’s attorney indicating whether petitioner has personally incurred any costs in the pursuit of their claim for compensation; and if petitioner has personally borne costs, (b) supporting documentation in the form of invoices, receipts, account statements, or any other document to substantiate each requested personal cost. sufficient 5. Interim Attorney’s Fees and Costs. All requirements set forth above in paragraphs 1–3 apply to requests for interim attorney’s fees and costs. Interim attorney’s fees and costs may be awarded at the discretion of the special master or the court, based on factors including, but not limited to, the duration of the litigation, the stage of the litigation, the fees and costs already incurred by petitioner, and whether non-payment of fees and costs at this stage of litigation would pose an undue hardship to petitioner and their attorney. It is incumbent on a petitioner to include any relevant information necessary for the special master or the court to determine whether an interim award is appropriate under the specific circumstances of the case. Rules Committee Notes 2023 Adoption The Second Supplement to the Vaccine Rules sets forth the necessary materials to substantiate a request for attorney’s fees and costs. This Second Supplement is intended to provide for the expedited review and award of attorney’s fees and costs in Vaccine Act cases by setting forth all required documentation and preventing the necessity of multiple filings. Second Supplement to Appendix B 150