Schussler v. Secretary of Health and Human Services ( 2024 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: October 4, 2024
* * * * * * * * * * * * * *
RICHARD SCHUSSLER, * No. 16-901V
* Special Master Sanders
Petitioner, *
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Maximillian J. Muller, Muller Brazil PA, Dresher, PA, for Petitioner;
Naseem Kourosh, United States Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
On July 28, 2016, Richard Schussler (“Petitioner”) filed a petition for compensation
pursuant to the National Vaccine Injury Compensation Program. 42 U.S.C. § 300aa-10 to -34
(2018)2 (the “Vaccine Act” or “Program”). Petitioner alleged the influenza (“flu”) vaccine he
received on October 9, 2013, caused him to suffer from polyneuropathy. Pet. at 17, ECF No. 1. He
later alleged that he suffered from small fiber neuropathy (“SFN”) as a result of said vaccination.
(ECF No. 51). On June 30, 2023, I issued my decision denying entitlement and dismissing the
petition. (ECF No. 67).
On September 11, 2023, Petitioner filed a motion for attorneys’ fees and costs. Pet’r’s Mot.
for Final Attorneys’ Fees and Costs [hereinafter “Pet’r’s Mot. for AFC”], ECF No. 71. Petitioner
1
Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision 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.
2
National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
requests total attorneys’ fees and costs in the amount of $106,908.83, representing $60,567.10 in
attorneys’ fees and $46,341.73 in attorneys’ costs. Pet’r’s Mot. for AFC at 2. Pursuant to General
Order No. 9, Petitioner has indicated that he has not personally incurred any costs in pursuit of his
petition. Id. Respondent responded to the motion on September 13, 2023, stating that Respondent
“is satisfied that the statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Resp’t’s Resp. at 2, ECF No. 72. Petitioner did not file a reply. This matter is now ripe for
consideration.
I. Reasonable Attorneys’ Fees and Costs
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.” §
15(e)(1). If a petitioner succeeds on the merits of his or her claim, the award of attorneys' fees is
automatic. Id.; see Sebelius v. Cloer, 133 S. Ct. 1886, 1891 (2013). However, a petitioner need not
prevail on entitlement to receive a fee award as long as the petition was brought in “good faith”
and there was a “reasonable basis” for the claim to proceed. § 15(e)(1). Here, although the petition
was eventually dismissed, I am satisfied that good faith and reasonable basis have been met in the
instant case. Respondent has also indicated he is satisfied that good faith and reasonable basis have
been met. Accordingly, Petitioner is entitled to a final award of reasonable attorneys’ fees and
costs.
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,
1348 (Fed. Cir. 2008). This is a two-step process. Id. First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’” Id. at 1347–48 (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 & Hum. 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 895. 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.A. Hourly Rate
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
2
Health & Hum. 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 can be accessed online.3
Petitioner requests the following hourly rates for the work of his counsel at Muller Brazil;
for Mr. Max Muller, $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, $350.00 per hour for work performed in 2020, $375.00 per hour for work
performed in 2021, $400.00 per hour for work performed in 2022, and $425.00 per hour for work
performed in 2023; for Ms. Amy Senerth, $225.00 per hour for work performed in 2017; and for
Ms. Bridget McCullough, $225.00 per hour for work performed in 2017. These rates are consistent
with what counsel have previously been awarded for their Vaccine Program work, and the
undersigned finds them to be reasonable herein.
B. Reasonable Number of Hours
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)). It is well-established that billing for administrative or
clerical tasks is not permitted in the Vaccine Program. See e.g., Rochester v. United States, 18 Cl.
Ct. 379, 387 (1989) (stating that services that are “primarily of a secretarial or clerical nature . . .
should be considered as normal overhead office costs included within the attorneys’ fee rates”);
see also Isom v. Sec’y of Health & Hum. Servs., No. 94-770, 2001 WL 101459, at *2 (Fed. Cl.
Spec. Mstr. Jan. 17, 2001) (agreeing with Respondent that tasks such as filing and photocopying
are subsumed under overhead expenses); Walters v. Sec’y of Health & Hum. Servs., No. 15-1380V,
2022 WL 1077311, at *5 (Fed. Cl. Spec. Mstr. Feb. 23, 2022) (failing to award fees for the review
of CM/ECF notifications and the organization of the file); McCulloch, 2015 WL 5634323, at *26
(noting that clerical and secretarial tasks should not be billed at all, regardless of who performs
them).
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. Accordingly, Petitioner is
entitled to final attorneys’ fees in the amount of $60,567.10.
C. Costs
Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests
a total of $46,341.73 in attorneys’ costs. This amount is comprised of acquisition of medical
records, the hearing transcript, and the Court’s filing fee. Pet’r’s Mot. for AFC, Ex. B at 1. The
amount also includes 87.9 hours of work performed by medical expert, Nizar Souyah, M.D., at a
3
The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. The hourly rates
contained within the schedules are updated from the decision in McCulloch, 2015 WL 5634323.
3
rate of $500.00 per hour. These costs have been supported with the necessary documentation and
are reasonable. Accordingly, Petitioner is entitled to final attorneys’ costs in the amount of
$46,341.73.
II. Conclusion
In accordance with the Vaccine Act, 42 U.S.C. §15(e) (2018), 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 $60,567.10
(Reduction to Fees) -
Total Attorneys’ Fees Awarded $60,567.10
Attorneys’ Costs Requested $46,341.73
(Reduction to Costs) -
Total Attorneys’ Costs Awarded $46,341.73
Total Attorneys’ Fees and Costs $106,908.83
Accordingly, the undersigned awards a lump sum in the amount of $106,908.83,
representing reimbursement for Petitioner’s attorneys’ fees and costs, in the form of a check
payable to Petitioner and his counsel, Mr. Maximillian Muller.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.4
IT IS SO ORDERED.
s/Herbrina D. Sanders
Herbrina D. Sanders
Special Master
4
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.
4