    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                     Filed: April 25, 2019

* * * * * * * * * * * * *  *
THOMAS PRESTIA,            *                               No. 17-013V
                           *
     Petitioner,           *                               Special Master Sanders
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                               Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
            Respondent.    *
* * * * * * * * * * * * * *
Shealene P. Mancuso, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Jay M. All, United States Department of Justice, Washington, D.C., for Respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS1

         On January 4, 2017, Thomas Prestia (“Petitioner”) 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 he suffered a shoulder injury related to vaccine administration
(“SIRVA”) in his right shoulder as a result of a flu vaccination he received on September 29, 2015.
Pet. at 1, ECF No. 1. On June 13, 2018, Petitioner filed a motion to voluntarily dismiss his petition,
and on June 14, 2018, the undersigned issued her Decision dismissing the petition for insufficient
proof. ECF No. 39.

       On January 14, 2019, Petitioner filed an application for attorneys’ fees and costs. ECF No.
43 (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of $23,644.35

1
  The undersigned intends 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 identified 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 States 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, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
(representing $22,305.00 in fees and $1,339.35 in costs). Fees App. at 2. Pursuant to General
Order No. 9, Petitioner has stated that he has not incurred any out-of-pocket costs in pursuit of his
claim. Id. Respondent responded to the motion on January 28, 2019, indicating that he “is satisfied
the statutory requirements for an award of attorneys’ 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. 44). 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 special masters to award “reasonable
attorneys’ fees, and other costs[.]” § 300aa–15(e)(1)(A)–(B). Petitioners may recover reasonable
attorneys’ fees and costs even if they are unsuccessful if “the special master determines that the
petition was brought in good faith and there was a reasonable basis[.]” 42 U.S.C. § 300aa–
15(e)(1); see also Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008);
Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013). Here, the undersigned does not doubt that the
petition was filed in good faith, and although the petition was eventually dismissed, the
undersigned finds that there was reasonable basis to file the petition. Respondent has also not
challenged the reasonable basis of the petition. Accordingly, a final award of fees is appropriate.

         The Federal Circuit has approved the lodestar approach to determine reasonable attorneys’
fees and costs under the Vaccine Act. Avera, 515 F.3d at 1348. 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 & Human 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.

       Special masters can reduce a fee request sua sponte, without providing petitioners notice


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and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209
(Fed. Cl. 2009). When determining the relevant fee reduction, Special Masters need not engage
in a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the
Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of
Dep’t of Health & Human Servs., 24 Cl. Ct. 482, 484 (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 claimed in attorney fee requests . . .
Vaccine program special masters are also entitled to use their prior experience in reviewing fee
applications.” Saxton, 3 F.3d at 1521.

       a. Hourly Rates

        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
Health & Human 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 for 2015–2016, 2017, 2018, and 2019 can be accessed online.3

       Petitioner requests the following rates of compensation for his attorneys: for Ms. Shealene
Mancuso, $225.00 per hour for work performed in 2017 and $250.00 per hour for work performed
in 2018 and 2019; for Mr. Maximillian Muller, $275.00 per hour for work performed in 2016,
$300.00 per hour for work performed in 2017, and $317.00 per hour for work performed in 2018;
for Mr. Paul Brazil, $300.00 per hour for work performed in 2017; and for Ms. Amy Senerth,
$225.00 per hour for work performed in 2017. Fees App. at 1. Petitioner also requests $125.00
per hour for all paralegal work performed.

       The rates requested for Mr. Muller, Mr. Brazil, Ms. Senerth, and paralegals are consistent
with what counsel have requested and been awarded in previous Vaccine Program cases by the
undersigned and other special masters. See e.g., Curry v. Sec’y of Health & Human Servs., No.
16-68V, 2018 WL 3991228, at *1 (Fed. Cl. Spec. Mstr. Jul. 10, 2018); Lee v. Sec’y of Health &
Human Servs., No. 15-823V, 2018 WL 4403970, at *1 (Fed. Cl. Spec. Mstr. Aug. 22, 2018).
However, Ms. Mancuso’s requested rates require an adjustment. Other special masters have
previously found that $250.00 per hour is too high for Ms. Mancuso’s work in 2018 because it
exceeds the maximum prescribed amount for attorneys with less than four years of experience.
Hyatt v. Sec’y of Health & Human Servs., No. 17-650V, 2018 WL 4611618, at *1 (Fed. Cl. Spec.

3
 The 2015–2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The 2018 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202018.pdf. The 2019 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys%27%20Forum%20Rate%20Fee%20Schedule
%202019.pdf. The hourly rates contained within the schedules are updated from the decision in
McCulloch, No. 09-293V, 2015 WL 5634323.

                                                   3
Mstr. Jun. 22, 2018). Consistent with the decision in Hyatt, the undersigned shall compensate Ms.
Mancuso at the rate of $233.00 per hour for her work in 2018. For her work in 2019, the
undersigned finds that $250.00 is a reasonable rate and consistent with what Ms. Mancuso has
been awarded previously. See Martin v. Sec’y of Health & Human Servs., No. 17-619V, slip op.
at 3-4 (Fed. Cl. Spec. Mstr. Mar. 6, 2019). This results in a reduction of $231.20.

          b. Hours Expended

         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.

        Upon review, the undersigned finds the hours billed appear to be high, thus warranting a
reduction. First, there are issues with individual entries. For example, Mr. Muller billed 0.4 hours
to “[o]pen client file” without further describing what work was actually being performed. Fees
App. at 6. Paralegals routinely billed 0.3 hours to prepare pro forma documents such as Notices
of Filing and billed an additional 0.3 hours to file said documents. Id. at 10–11. Time was also
billed on administrative tasks such as processing invoices. Id.

         Second, and more generally, Ms. Mancuso by and large appeared to view 0.2 hours as the
minimum amount of time to complete any task. See generally Fees App. This general issue has
previously been noted of Muller Brazil attorneys and paralegals by the undersigned and other
special masters. See, e.g., Meadows v. Sec’y of Health & Human Servs., No. 16-861V, 2018 WL
6292565, at *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018); Plescia v. Sec’y of Health & Human Servs.,
No. 15-1472V, 2018 WL 6291870, at *2 (Fed. Cl. Spec. Mstr. Oct. 31, 2018). Similar to the issue
noted in Plescia, it is very unlikely in the undersigned’s experience that Ms. Mancuso expended
at least 0.2 hours on every instance of correspondence (both phone calls and e-mail) in this case.
Nor is it likely that the task of “[d]irect paralegal activity re: filing” took 0.2 hours to do.

        Accordingly, the undersigned shall reduce the requested amount of attorneys’ fees by 10%
to adjust for these issues. This results in a reduction of $2,207.38.4

          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). Petitioner requests
a total of $1,339.35 in costs, covering the cost of medical records, the Court’s filing fee, and travel
costs to attend a fact hearing in this matter. Fees App. at 14. Petitioner has provided adequate
documentation for all these costs, and the undersigned finds them all to be reasonable.
Accordingly, Petitioner is entitled to a full reimbursement of costs, i.e., $1,339.35.

II.       Conclusion

       Based on all the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs:
4
    (Requested fees of $22,305.00 - $231.20 for rate adjustment) * 0.1 = $2,207.38.

                                                      4
    Attorneys’ Fees Requested                                             $22,305.00
    (Reduction to Fees)                                                  - ($2,438.58)
    Total Attorneys’ Fees Awarded                                         $19,866.42

    Attorneys’ Costs Requested                                             $1,339.35
    (Reduction of Costs)                                                       -
    Total Attorneys’ Costs Awarded                                         $1,339.35

    Total Amount Awarded                                                  $21,205.77

        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 Petitioner’s request for fees and
costs is reasonable. Accordingly, the undersigned hereby awards a total of $21,205.77 to be
issued in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Ms.
Shealene Mancuso, of Muller Brazil, LLP, for attorneys’ fees and costs.

       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.5

         IT IS SO ORDERED.

                                                 s/Herbrina D. Sanders
                                                 Herbrina D. Sanders
                                                 Special Master




5
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

                                                     5
