1

In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 08-573V

(Not For Publication)

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

TIMOTHY T BOKMULLER and *

DEBORAH L BOKMULLER, *

parents and natural guardians of *

BTB, a minor, *

* Filed: November 4, 2016

* 

Petitioners, * Vaccine Act Fees and Costs

*

v. *

*

SECRETARY OF HEALTH AND *

HUMAN SERVICES, * 

* 

Respondent. * 

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

John McHugh, New York, NY, for Petitioners.

Ann Donohue Martin, Department of Justice, Washington, DC, for Respondent.

DECISION AWARDING ATTORNEYS’ FEES AND COSTS

HASTINGS, Special Master.

In this case under the National Vaccine Injury Compensation Program (hereinafter “the 

Program”1), Petitioners seek, pursuant to 42 U.S.C. § 300aa-15(e)(1), an award for attorneys’ 

fees and other costs incurred in attempting to obtain Program compensation. After careful 

consideration, I have determined to grant the request in substantial part. 

 

1 The applicable statutory provisions defining the Program are found at 42 U.S.C. § 300aa10 et seq. (2012 ed.). Hereinafter, for ease of citation, all "§" references will be to 42 U.S.C. 

(2012 ed.). The statutory provisions defining the Program are also sometimes referred to as the 

“Vaccine Act.” 
2

I

BACKGROUND LAW CONCERNING ATTORNEYS’ FEES AND COSTS AWARDS

A. General

Special masters have the authority to award “reasonable” attorneys' fees and litigation

costs in Vaccine Act cases. §300aa–15(e)(1). This is true even when a petitioner is unsuccessful 

on the merits of the case, if the petition was filed in good faith and with a reasonable basis. Id.

“The determination of the amount of reasonable attorneys' fees is within the special master's 

discretion.” Saxton v. HHS, 3 F.3d 1517, 1520 (Fed. Cir. 1993); see also Shaw v. HHS, 609 F.3d 

1372, 1377 (Fed. Cir. 2010).

Further, as to all aspects of a claim for attorneys' fees and costs, the burden is on the 

petitioner to demonstrate that the attorneys' fees claimed are “reasonable.” Sabella v. HHS, 86 

Fed. Cl. 201, 215 (2009); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Rupert v. HHS, 52 

Fed. Cl. 684, 686 (2002); Wilcox v. HHS, No. 90–991V, 1997 WL 101572, at *4 (Fed. Cl. Spec. 

Mstr. Feb. 14, 1997). The petitioner's burden of proof to demonstrate “reasonableness” applies 

equally to costs as well as attorneys’ fees. Perreira v. HHS, 27 Fed. Cl. 29, 34 (1992), aff'd, 33 

F.3d 1375 (Fed. Cir. 1994).

One test of the “reasonableness” of a fee or cost item is whether a hypothetical petitioner, 

who had to use his own resources to pay his attorney for Vaccine Act representation, would be 

willing to pay for such expenditure. Riggins v. HHS, No. 99–382V, 2009 WL 3319818, at *3 

(Fed. Cl. Spec. Mstr. June 15, 2009), aff'd by unpublished order (Fed. Cl. Dec. 10, 2009), aff’d,

406 Fed. App’x. 479 (Fed. Cir. 2011); Sabella v. HHS, No. 02–1627V, 2008 WL 4426040, at 

*28 (Fed. Cl. Spec. Mstr. Aug. 29, 2008), aff'd in part and rev'd in part, 86 Fed. Cl. 201 (2009). 

In this regard, the United States Court of Appeals for the Federal Circuit has noted that:

[i]n the private sector, ‘billing judgment’ is an important component in fee setting. It is 

no less important here. Hours that are not properly billed to one's client also are not 

properly billed to one's adversary pursuant to statutory authority.

Saxton, 3 F.3d at 1521 (emphasis in original) (quoting Hensley, 461 U.S. at 433–34). Therefore, 

in assessing the number of hours reasonably expended by an attorney, the court must exclude 

those “hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 

practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. 

at 434; see also Riggins, 2009 WL 3319818, at *4.

The Federal Circuit has also made clear that special masters may rely on their prior 

experience in making reasonable fee determinations, without conducting a line-by-line analysis 

of the fee bill, and are not required to rely on specific objections raised by respondent. See 

Saxton, 3 F.3d at 1521; Sabella, 86 Fed. Cl. 201, 209 (2009); see also Wasson v. HHS, 24 Cl. Ct. 

482, 484, 486 (1991), aff’d, 988 F.2d 131 (Fed. Cir. 1993) (holding that, in determining a 

reasonable number of hours expended in any given case, a special master may rely on her 

experience with the Vaccine Act and its attorneys, without basing her decision on a line-by-line 
3

examination of the fee application). A unanimous Supreme Court has articulated a similar 

holding:

We emphasize, as we have before, that the determination of fees “should not result in a 

second major litigation.” The fee applicant (whether a plaintiff or a defendant) must, of 

course, submit appropriate documentation to meet “the burden of establishing entitlement 

to an award.” But trial courts need not, and indeed should not, become green-eyeshade 

accountants. The essential goal in shifting fees (to either party) is to do rough justice, not 

to achieve auditing perfection. So trial courts may take into account their overall sense of 

a suit, and may use estimates in calculating and allocating an attorney’s time. And 

appellate courts must give substantial deference to these determinations, in light of “the 

district court’s superior understanding of the litigation.” We can hardly think of a sphere 

of judicial decisionmaking in which appellate micromanagement has less to recommend 

it.

Fox v. Vice, 563 U.S. 826, 838 (2011) (internal citations omitted).

II

PROCEDURAL HISTORY 

The Petitioners, Timothy and Deborah Bokmuller, filed this petition on August 13,

2008, alleging a vaccine-caused injury to their minor child, BTB. (Petition, ECF No. 1.) The 

case was assigned to Special Master Gary Golkiewicz. (ECF No. 2.)

For nearly seven years, Petitioners’ counsel spent time gathering the relevant medical 

records and unsuccessfully attempting to find an expert who could provide support for 

Petitioners’ claim. Finally, on May 1, 2015, Petitioners filed a motion seeking a decision based 

on the written record. (ECF No. 76.) On June 26, 2015, I filed my Decision denying Petitioners’ 

claim. (ECF No. 77.) Petitioners did not seek review of that Decision, so that judgement 

denying their claim was entered on August 3, 2015. (ECF No. 79.) 

On June 2, 2016, Petitioners filed an application seeking attorneys’ fees and costs

incurred in their attempt to gain compensation in this proceeding. (ECF No. 84.) They seek a

total of $61,593.26 in fees and costs. Respondent filed a short Response on June 16, 2016,

arguing that I should award a reduced amount in the range of $12,000 to $15,000, but offering

no substantial analysis of the application. (ECF No. 87.) Respondent took the position that the

Vaccine Act did not contemplate a “role for Respondent in the resolution of a request by a

petitioner for an award of attorneys’ fees and costs” (id., p. 2), and requested that the special

master “exercise his discretion” in determining a reasonable award (id., p. 4).
4

III

DISCUSSION

A. Good faith and reasonable basis

After reviewing the record of this case, I find that this case was filed and prosecuted in 

good faith and with a reasonable basis. 

B. Amount of the award

1. Hourly rates

In Petitioners’ Application and the documents appended thereto, filed on June 2, 2016,

ECF No. 84 and attachments 84-1 through 84-5, I could not find an explicit listing of Mr. 

McHugh’s hourly rates for the years in question. However, studying ECF Document No. 85 and 

attachment 85-1, also filed on June 2, it appears that Mr. McHugh seeks $325 per hour for work 

in 2008-2009, $335 for 2010, $340 for 2011-12, $355 for 2014, and $364 for 2015. These rates 

appear reasonable and will be granted. (See, e.g., McCulloch v. HHS, 2015 WL 5634323, at *19 

(Fed. Cl. Spec. Mstr. Sept. 1, 2015).)

2. Attorney hours

The total number of hours claimed by Mr. McHugh, based generally on my 27 years as a 

Vaccine Act special master, and in particular in my extensive work in autism-related cases over 

the past 14 years, seems to me to be substantially more than a reasonable amount for the services 

provided. Accordingly, in what seems to me to be a generous assessment, I will reduce the total 

claimed amount for attorneys’ fees by 20 percent. 

3. Attorney costs

The claimed attorney costs appear reasonable to me, and will be awarded. 

4. Petitioners’ own costs

After examining ECF No. 84-5, page 1, and all the extensive documents filed on 

September 1, 2016, it appears to me that the Bokmullers likely did spend the claimed amount of 

money in the process of seeking an expert witness for their claim. I will grant the amount of 

$15,283.79, as set forth at ECF No. 90, page 6, para. 11.
5

IV

CALCULATION OF AWARD

Attorney’s fees $39,409 times (80%) = $ 31,527.20

Attorney’s costs 5,133.51

Mr. and Mrs. Bokmuller’s costs 15,283.79

__________________________________________________________

 Total award = $ 51,944.50

V

CONCLUSION

 For the foregoing reasons, I award Petitioners $51,944.50 in attorneys’ fees and costs. The 

award shall be made in the form of a check payable to Petitioners in the amount of $15,283.79, 

plus a check payable jointly to Petitioners and Petitioners’ counsel of record in the amount of 

$36,660.71. The Clerk of this Court shall enter judgment accordingly. 

IT IS SO ORDERED.

 /s/ George L. Hastings, Jr.

George L. Hastings, Jr.

Special Master