In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

(Filed: March 26, 2021)

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

HEATHER TUMOLO, * UNPUBLISHED 

* No. 16-343V

Petitioner, *

* Special Master Dorsey

v. *

 * Attorneys’ Fees and Costs

* 

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

 *

 Respondent. *

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

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

Jennifer L. Reynaud, U.S. Department of Justice, Washington, DC, for respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On March 16, 2016, Heather Tumolo (“petitioner”) filed a petition in the National 

Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered a left shoulder 

injury caused by her September 30, 2014 influenza vaccination. Petition at 1 (ECF No. 1). On 

March 15, 2019, the undersigned issued a ruling on entitlement, finding that petitioner was 

entitled to compensation. After the parties were unable to resolve damages, the undersigned 

issued her damages decision on October 1, 2020. (ECF No. 99).

On December 10, 2020, petitioner filed an application for attorneys’ fees and costs. 

Motion for Attorney Fees and Costs (ECF No. 103). Petitioner requests compensation in the 

1 This decision will be posted on the website of the United States Court of Federal Claims' website, in accordance 

with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to 

anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object 

to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 

18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that 

is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical 

filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine 

Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id. 

2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine 

Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) 

(“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. 

§§ 300aa. 
2

amount of $47,935.22, representing $42,758.00 in attorneys’ fees and $5,177.22 in attorneys’ 

costs. Fees App. at 2. Pursuant to General Order No. 9, petitioner states she has not incurred any 

costs related to the prosecution of their petition. Id. Respondent failed to file a response within 

the allotted time, and petitioner did not file a reply. The matter is now ripe for disposition.

For the reasons discussed below, the undersigned GRANTS petitioner’s motion and 

awards a total of $47,935.22.

I. Discussion

Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and 

costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). 

When compensation is not awarded, the special master “may” award reasonable attorneys’ fees

and costs “if the special master or court determines that the petition was brought in good faith

and there was a reasonable basis for the claim for which the petition was brought.” Id. at 

§15(e)(1). In this case, because petitioner was awarded compensation, she is entitled to a final 

award of reasonable attorneys’ fees and costs.

a. Reasonable Attorneys’ Fees 

The Federal Circuit has approved use of the lodestar approach to determine reasonable 

attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 

F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an 

initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably 

expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v. 

Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward 

departure from the initial calculation of the fee award based on other specific findings. Id. at 

1348.

Counsel must submit fee requests that include contemporaneous and specific billing 

records indicating the service performed, the number of hours expended on the service, and the 

name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85 

Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 

3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It 

is “well within the special master’s discretion to reduce the hours to a number that, in [her] 

experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the 

special master may reduce a fee request sua sponte, apart from objections raised by respondent 

and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of

Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). 

A special master need not engage in a line-by-line analysis of a petitioner’s fee 

application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 

719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its 

attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health
3

and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 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 clamed in attorney fee requests ... 

[v]accine program special masters are also entitled to use their prior experience in reviewing fee 

application.” Saxton, 3 F. 3d at 1521. 

i. Reasonable Hourly Rates

Petitioner requests the following hourly rates for the work of her counsel, Mr. 

Maximillian Muller: $255.00 per hour for work performed in 2015, $275.00 per hour for work 

performed in 2016, $300.00 per hour for work performed in 2017, $317.00 per hour for work 

performed in 2018, $325.00 per hour for work performed in 2019, and $350.00 per hour for work 

performed in 2020. These rates are consistent with what Mr. Muller has previously been awarded 

for his Vaccine Program work, and the undersigned finds them to be reasonable herein.

ii. Reasonable Hours Expended

 The overall hours spent on this matter appear to be reasonable. The undersigned has

reviewed the billing entries and finds that they adequately describe the work done on the case 

and the amount of time spent on that work. None of the entries appear objectionable, nor has 

respondent identified any entries as objectionable. Accordingly, petitioner is entitled to a final 

award of attorneys’ fees in the amount of $42,758.00.

b. Attorneys’ Costs 

Petitioner requests a total of $5,177.22 in attorneys’ costs. This amount is comprised of 

acquiring medical records, postage, the Court’s filing fee, and work performed by petitioner’s 

medical expert, Dr. G. Russell Huffman. Fees App. at 17. The requested costs are typical of 

Vaccine Program litigation and are reasonable in the undersigned's experience, and petitioner has 

provided adequate documentation supporting them. Petitioner is therefore awarded the full 

amount of costs requested.

II. Conclusion

Based on all of the above, the undersigned finds that it is reasonable compensate 

petitioner and her counsel as follows: 

Attorneys’ Fees Requested $42,758.00

(Total Reduction from Billing Hours) -

Total Attorneys’ Fees Awarded $42,758.00

Attorneys’ Costs Requested $5,177.22

(Reduction of Costs) -

Total Attorneys’ Costs Awarded $5,177.22
4

Total Attorneys’ Fees and Costs Awarded $47,935.22

Accordingly, the undersigned awards a lump sum in the amount of $47,935.22, 

representing attorneys’ fees and costs, in the form of a check payable jointly to petitioner 

and her counsel, Mr. Maximillian Muller.

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

Court SHALL ENTER JUDGMENT in accordance with this decision.

3

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Special Master

3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing 

the right to seek review.