0In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: March 13, 2020

* * * * * * * * * * * * * * UNPUBLISHED

ERNEST KNAPP, * No. 18-1003V

* Special Master Horner

Petitioner, *

*

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

* * * * * * * * * * * * * * 

Bridget C. McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Voris E. Johnson, United States Department of Justice, Washington, D.C., for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On July 12, 2018, Ernest Knapp filed a petition for compensation pursuant to the National 

Vaccine Injury Compensation Program.242 U.S.C. §§ 300aa-10 to 34 (2012). The petition alleged 

that Mr. Knapp suffered from brachial neuritis following a tetanus-diphtheria-acellular pertussis 

(“Tdap”) vaccination. Pet. at ¶ On October 29, 2019, the parties filed a Proffer, which I adopted 

as my Decision awarding compensation on the same day. Decision, ECF No. 40.

On November 11, 2019, petitioner filed an application for attorneys’ fees and costs. ECF 

No. 45 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $8,269.15

(representing $7,513.40 in fees and $755.75 in costs). Fees App. at 2. Pursuant to General Order 

No. 9, petitioner warrants that he has not personally incurred any costs related to the prosecution 

 

1

I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling 

will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner 

has 14 days to identify and move to redact medical or other information, the disclosure of which would 

constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits 

within this definition, I will redact such material from public access. Because this unpublished ruling 

contains a reasoned explanation for the action in this case, I am required to post it on the United States 

Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 

note (2012) (Federal Management and Promotion of Electronic Government Services).

2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease 

of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa 

(2012).
2

of his petition. Id. Respondent responded to the motion on November 13, 2019, indicating that he 

“is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this 

case” and requests that I exercise my discretion and determine a reasonable award for attorneys’ 

fees and costs. Resp. at 2–3 (ECF No. 46). Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The 

Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and 

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. 

Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate 

. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable 

hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may 

make an upward or downward departure from the initial calculation of the fee award based on 

specific findings. Id. at 1348.

It is “well within the special master’s discretion” to determine the reasonableness of fees.

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines 

v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant 

the special master wide latitude in determining the reasonableness of both attorneys’ fees and 

costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing 

records that indicate the work performed and the number of hours spent on said work. See Savin 

v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, 

should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate 

“in the community for similar services by lawyers of reasonably comparable skill, experience and

reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove 

that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte, without providing petitioners notice 

and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 

(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in 

a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human 

Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the 

Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t 

of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant 

part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to 

reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program 

special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 

3 F.3d at 1521.
3

a. Hourly Rates

The decision in McCulloch provides a framework for consideration of appropriate ranges 

for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of 

Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 

2015), motion for recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). The 

Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee 

Schedules for 2015–2016, 2017, 2018, and 2019 can be accessed online.3

Petitioner requests the following rates for the work of his counsel at Muller Brazil, LLP: 

for Ms. Bridget McCullough, $225.00 per hour for work performed in 2018 and 2019; and for Mr. 

Max Muller, $317.00 per hour for work performed in 2018 and $325.00 per hour for work 

performed in 2019. The rates sought herein for these individuals are consistent with what they 

have previously been awarded for their Vaccine Program work and are reasonable for work 

performed in the instant case as well.

b. Hours Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the 

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be 

compensated for non-attorney-level work, the rate must be comparable to what would be paid for 

a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 

2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be 

billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

Upon review, I find the overall hours billed to be reasonable. Counsel has provided 

sufficiently detailed descriptions for the tasks performed, and, upon review, the undersigned does 

not find any of the billing entries to be unreasonable. Respondent also did not indicate that he 

finds any of the billing entries to be unreasonable. Accordingly, Petitioner is entitled to final 

attorneys’ fees in the amount of $7,513.40.

c. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests

 

3 The 2015–2016 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The 

2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-ForumRate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule

%202018.pdf. The 2019 Fee Schedule can be accessed at: 

http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule

%202019.pdf. The hourly rates contained within the schedules are updated from the decision in 

McCulloch, 2015 WL 5634323.
4

a total of $755.75 in attorneys’ costs. This amount comprises the cost of obtaining medical records, 

postage and the Court’s filing fee. Petitioner has provided adequate documentation supporting the 

requested costs and all appear reasonable in my experience. Petitioner is thus entitled to the full 

amount of attorneys’ costs sought. 

II. Conclusion

Based on all the above, I find that petitioner is entitled to the following award of reasonable 

attorneys’ fees and costs:

Attorneys’ Fees Requested $7,513.40

(Reduction to Fees) -

Total Attorneys’ Fees Awarded $7,513.40

Attorneys’ Costs Requested $755.75

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $755.75

Total Attorneys’ Fees and Costs $8,269.15

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the 

billing records and costs in this case and finds that petitioner’s request for fees and costs is 

reasonable. Accordingly, I award a lump sum in the amount of $8,269.15, representing 

reimbursement for petitioner’s attorneys’ fees and costs, in the form of a check payable to 

petitioner and his attorney, Ms. Bridget McCullough; and

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the 

Court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.

s/Daniel T. Horner

 Daniel T. Horner

Special Master

 

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek 

review. Vaccine Rule 11(a).