In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: October 4, 2019

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

TIMOTHY SELLING, *

*

Petitioner, * No. 16-588V

* Special Master Oler

v. *

 * Attorneys’ Fees and Costs

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Ryan D. Pyles, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On May 18, 2016, Timothy Selling (“Petitioner”) filed a petition for compensation 

pursuant to the National Vaccine Injury Compensation Program.2 42 U.S.C. §§ 300aa-10 to -34 

(2012). Petitioner alleged that the influenza (“flu”) vaccination he received on October 13, 2014 

caused him to develop left shoulder injuries immediately after vaccination. See Petition, ECF No. 

1. On June 21, 2018, the undersigned issued her ruling on entitlement, finding that Petitioner was 

entitled to compensation. ECF No. 48. On May 2, 2019, the undersigned issued her Decision 

awarding damages. ECF No. 57.

On June 26, 2019, Petitioner filed an application for final attorneys’ fees and costs. ECF 

 

1 The undersigned intends 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, the undersigned agrees that the identified material fits within this 

definition, the undersigned will redact such material from public access. Because this unpublished 

ruling contains a reasoned explanation for the action in this case, the undersigned is 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.
2

No. 61 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of 

$32,174.77, representing $29,512.60 in attorneys’ fees and $2,662.17 in attorneys’ costs. Fees 

App. at 2. Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs 

related to this litigation. Id. Respondent responded to the motion on June 26, 2019, stating that 

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

met in this case” and requesting that the undersigned “exercise her discretion and determine a 

reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2-3, ECF No. 62. Petitioner did 

not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable 

attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of 

reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, 

even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition 

was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 

F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation, he is 

entitled to an award of attorneys’ fees and costs.

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).

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

relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). 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. The petitioner bears the burden of providing 

adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

The undersigned has reviewed the rates requested by Petitioner for the work of his counsel 

at Muller Brazil, LLP (the billing records indicate that the majority of the attorney work was 

performed by Mr. Maximillian Muller, while Ms. Amy Senerth and Ms. Bridget McCullough 

performed supporting work). Fees App. at 1. The rates requested are consistent with what the 

undersigned and other special masters have consistently awarded Muller Brazil, LLP attorneys and 

paralegals for their vaccine program work. See, e.g., Hirsch v. Sec’y of Health & Human Servs., 

No. 17-1596V, 2019 WL 3731449, at *2 (Fed. Cl. Spec. Mstr. Jul. 10, 2019); Berkow v. Sec’y of 

Health & Human Servs., No. 17-1587V, 2019 WL 2062111, at *2 (Fed. Cl. Spec. Mstr. Apr. 26, 

2019). Accordingly, the requested hourly rates are reasonable.
3

b. Reasonable 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 (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for 

administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 

18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL 

2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

Upon review, the undersigned finds 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 $29,512.60.

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 

a total of $2,662.17 in attorneys’ costs. This amount is comprised of acquiring medical records, 

the Court’s filing fee, and costs associated with the fact hearing. Fees App. at 19. These costs are 

all typical of Vaccine Program litigation and Petitioner has provided adequate documentation 

supporting the requested costs. Accordingly, Petitioner is entitled to the full amount of costs 

sought.

II. Conclusion

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

reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and 

costs is reasonable. Based on the above analysis, the undersigned finds that it is reasonable to 

compensate Petitioner and his counsel as follows:

Attorneys’ Fees Requested $29,512.60

(Reduction to Fees) -

Total Attorneys’ Fees Awarded $29,512.60

Attorneys’ Costs Requested $2,662.17

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $2,662.17

Total Amount Awarded $32,174.77
4

Accordingly, the undersigned awards a lump sum in the amount of $32,174.77, 

representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check 

payable jointly to Petitioner and Petitioner’s counsel of record, Mr. Maximillian Muller.

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.3

IT IS SO ORDERED.

s/Katherine E. Oler

 Katherine E. Oler

Special Master

 

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

review. Vaccine Rule 11(a).