    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                                  (Not For Publication)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. § 300aa-
10 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.”


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                                                  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


                                                  2
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).




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                                                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.




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                                               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




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