# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: October 4 , 2019

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

TIMOTHY SELLING

, *

* Petitioner, * No. 1 6

- 588 V

* Special Master Oler

v. *

* Attorneys’ Fees and Costs

SECRETARY OF HEALTH * AND HUMAN SERVICES, *

* Respondent. *

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

Maximillian J. Muller

, Muller Brazil, LLP, Dresher, PA

, for P etitioner. Ryan D. Pyles , United States Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY S’ FEES AND COSTS 1

On May 18, 2016

, Timothy Selling (“ P etitioner”) 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 h im 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 J une 2 6 , 201 9

, P etitioner filed an application for final attor neys’ fees and costs. ECF

1 The undersigned intend s 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 iden tified 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 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United Sta tes Court of Federal Claims'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, 10 0 Stat. 3755.2

No. 61 (“Fees App.”). Petitioner requests total attorneys’ fees and c osts in the amount of $ 3 2,174.77

, represen ting $ 29,512.60 in attorneys’ fees and $ 2,662.17 in attorney s’ 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 2 6 , 2019

, stating that “Respondent is satisfied the statutory requirements for an award of atto rneys’ 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 Specia l 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 P etitioner 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 ind icate 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 o f 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 th e rates requested by Petitioner for the work of h is 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 w ork. 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). Accord ingly, the requested hourly rates are reasonable.3

b. Reasonable Hours E xpended

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

un dersigned 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). Petitione r 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 P etitioner has provided adequate documentation supporting the requested costs. Accordingly, P etitioner 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 P etitione r’s request for fees and

costs is reasonable. Based on the above analysis, the undersigned f inds that it is reasonable to
compensate P etitioner and h is 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 $ 3 2,174.774

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 P etitioner and P etitioner’s counsel of record, M r. 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).