        In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 13-635V
                                       Filed: July 5, 2017

 * * * * * * * * * * * * *                     *   *
 PETER NATHANIEL MULLIKEN,                         *       UNPUBLISHED
                                                   *
                 Petitioner,                       *
 v.                                                *
                                                   *       Decision on Attorneys’ Fees and Costs
 SECRETARY OF HEALTH                               *
 AND HUMAN SERVICES,                               *
                                                   *
          Respondent.                              *
 * * * * * * * * * * * * *                     *   *

Peter J. Schuyler, Esq., Kitson & Schuyler, LLP, Croton-on-Hudson, NY, for petitioner.
Lynn E. Ricciardella, Esq., U.S. Department of Justice, Washington, DC, for respondent.

                       DECISION ON ATTORNEYS’ FEES AND COSTS1

Roth, Special Master:

        On September 3, 2013, Petitioner (“Mr. Mulliken,” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleged
that he developed Guillain-Barre Syndrome (“GBS”) as a result of receiving an influenza
vaccination on October 16, 2010. See Petition (“Pet.”), ECF No. 1. On September 13, 2016, the
undersigned issued a decision awarding compensation to petitioner based on the parties’
stipulation. Decision, ECF No. 64.




        1
          Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims’ website, in accordance with the
E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), a party has 14 days to identify and
move to delete medical or other information, that satisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B).
Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted
decision. If, upon review, I agree that the identified material fits within the requirements of that
provision, I will delete such material from public access.
        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).


                                                       1
       On April 18, 2017, petitioner filed a Motion for Attorneys’ Fees and Costs. Motion for
Fees, ECF No. 70. Petitioner requested attorneys’ fees in the amount of $70,490.51, and
attorneys’ costs in the amount of $7,938.72, for a total amount of $78,429.23. Id. at 26.

        On April, 28, 2017, respondent filed a response to petitioners’ Motion for Fees.
Response, ECF No. 71. Respondent provided no specific objection to the amount requested or
hours worked, but instead, “respectfully recommend[ed] that the Special Master exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

        A status conference was held on May 10, 2017. Petitioner’s counsel was ordered to
provide any documents or receipts that supported the costs incurred in this matter, list the total
amount of fees and the total amount of costs as separate items, and file a General Order #9. The
undersigned advised petitioner’s counsel that their fees and hourly rates would be reduced to the
appropriate forum rate as set forth in McCulloch v. Sec’y of Health & Human Servs., No. 09-
293V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). Order, issued May 10, 2017, ECF
No. 72.

       On June 9, 2017, petitioner’s counsel filed a “Supplemental Submission Requested by the
Court,” requesting attorneys’ fees in the amount of $70,372.80, and attorneys’ costs in the
amount of $7,938.72, for a total amount of $78,311.52. Supp. Motion for Fees, ECF No. 74.
Counsel also filed a General Order #9, stating that petitioner did not incur any out-of-pocket
expenses and that, notwithstanding petitioner’s original retainer agreement, counsel waives all
claims against petitioner for any fees and costs. Id. at 63-65.

                                 I. Applicable Legal Standards

       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).

         The Federal Circuit has endorsed the use of the lodestar approach to determine what
constitutes “reasonable attorneys’ fees” and “other costs” under the Vaccine Act. Avera v. Sec’y
of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Under this approach, “an
initial estimate of a reasonable attorneys’ fees” is calculated 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)). A “reasonable hourly rate” is defined as the rate
“prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.” Id. at 1348 (quoting Blum, 465 U.S. at 896 n.11). That product is
then adjusted upward or downward based on other specific findings. Id.

        Special masters have substantial discretion in awarding fees and may adjust a fee request
sua sponte, apart from objections raised by respondent and without providing petitioners with
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl.
201, 209 (Fed. Cl. 2009). Special masters need not engage in a line-by-line analysis of

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petitioner’s fee application when reducing fees. See Broekelschen v. Sec’y of Health & Human
Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011).

                                             II. Discussion

A.      Reasonable Hourly Rate

         In general, the hourly rate is based on “the forum rate for the District of Columbia” rather
than “the rate in the geographic area of the practice of petitioner’s attorney.” Rodriguez v. Sec’y
of Health and Human Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Avera, 515 F. 3d at
1349). There is a “limited exception” that provides for attorney’s fees to be awarded at local
hourly rates when “the bulk of the attorney’s work is done outside the forum jurisdiction” and
“there is a very significant difference” between the local hourly rate and forum hourly rate. Id.
This is known as the Davis County exception. See Hall v. Sec’y of Health & Human Servs., 640
F.3d 1351, 1353 (2011) (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv.
Dist. v. U.S. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999)).

        In this case, Mr. Schuyler works in Westchester County, New York, which is adjacent to
New York City. Special masters have consistently awarded forum rates to legal professionals
practicing in the New York metropolitan area. See, e.g., Michel v. Sec’y of Health & Human
Servs., No. 14-781V, 2016 WL 7574478, at *3 (Fed. Cl. Nov. 28, 2016); Paterek v. Sec’y of
Health & Human Servs., No. 02-411V, 2014 WL 3339503, at *2 (Fed. Cl. June 12, 2014).
Therefore, forum rates apply in this case.

       For cases in which forum rates apply, McCulloch provides a framework for determining
the appropriate hourly rate range for attorneys’ fees based upon the attorneys’ experience. See
McCulloch, 2015 WL 5634323. The Office of Special Masters has accepted the decision in
McCulloch and has issued a Fee Schedule.3

       Mr. Schuyler has been a member of the New York Bar since 1998; thus, the applicable
range under McCulloch is $300-$375. Although Mr. Schuyler requested $345 per hour, this is
Mr. Schuyler’s first case in the Vaccine Program, and the lower end of the range is thus
appropriate. See Srour v. Sec’y of Health & Human Servs., No. 14-283V, 2017 WL 2537373, at
*4 (Fed. Cl. Spec. Mstr. May 17, 2017) (awarding hourly rate based in part on “specific
experience with the Vaccine Program”); Dipietro v. Sec’y of Health & Human Servs., No. 15-
742V, 2016 WL 7384131, at *5 (Fed. Cl. Spec. Mstr. Oct. 6, 2016) (considering level of
experience in the Vaccine Program in determining appropriate hourly rate). Therefore, the
undersigned will award Mr. Schuyler attorneys’ fees at a rate of $300 per hour.

       Mrs. Schuyler has been a member of the New York Bar since 2000; thus, the applicable
range under McCulloch is $300-$375. However, Mrs. Schuyler is not admitted to practice in the


        3
         This fee schedule is posted on the court’s website. See Office of Special Masters: Attorneys’
Forum Hourly Rate Fee Schedule: 2015-2016,
http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf.

                                                    3
Court of Federal Claims.4 In order to be eligible to practice in the Vaccine Program, an attorney
must be admitted to practice in the Court of Federal Claims; an attorney who is not eligible to
practice in the Vaccine Program cannot recover attorneys’ fees. Underwood v. Sec’y of Health
& Human Servs., No. 00-357V, 2013 WL 3157525, at *4 (Fed. Cl. Spec. Mstr. May 31, 2013);
see Vaccine Rule 14(a)(1). Additionally, review of the billing record indicates that Mrs.
Schuyler’s work in this case was administrative, secretarial, and/or paralegal in nature.
Accordingly, the work performed by Mrs. Schuyler will not be compensated at the applicable
rate for attorneys. Instead, the undersigned finds it appropriate to use the range applicable to
non-attorney-level work, $125-$175, for the hours in which Mrs. Schuyler performed work in a
supportive role. Cf. O’Neill v. Sec’y of Health & Human Servs., No. 08-243V, 2015 WL
2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015) (explaining that attorney compensation for
non-attorney-level work must be comparable to what would be paid for a paralegal or secretary).
Because this is Mrs. Schuyler’s first case in the Vaccine Program, the lower end of the range is
appropriate. Therefore, the undersigned will award Mrs. Schuyler fees at a rate of $125 per hour.

B.      Hours Reasonably 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 (quoting Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983)). “Unreasonably duplicative or excessive billing”
include “an attorney billing for a single task on multiple occasions, multiple attorneys billing for
a single task, attorneys billing excessively for intra office communications, attorneys billing
excessive hours, [and] attorneys entering erroneous billing entries.” Raymo v. Sec’y of Health &
Human Servs., 129 Fed. Cl. 691, 703 (2016). Clerical and secretarial tasks should not be billed
at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26. Hours
spent traveling are ordinarily compensated at one-half of the normal hourly attorney rate. See
Scott v. Sec’y of Health & Human Servs., No. 08-756V, 2014 WL 2885684, at *3 (Fed. Cl. Spec.
Mstr. June 5, 2014) (collecting cases). And “it is inappropriate for counsel to bill time for
educating themselves about basic aspects of the Vaccine Program.” Matthews v. Sec’y of Health
& Human Servs., No 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).
Ultimately, 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.” Saxton, 3 F.3d at 1522. In
exercising that discretion, special masters may reduce the number of hours submitted by a
percentage of the amount charged. See Broekelschen, 102 Fed. Cl. at 728-29 (affirming the
Special Master’s reduction of attorney and paralegal hours); Guy v. Sec’y of Health & Human
Servs., 38 Fed. Cl. 403, 406 (1997) (same).

       A review of petitioner’s application5 reveals that Mr. Schuyler and Mrs. Schuyler charged
$345 for all of the work performed in this case, including administrative, paralegal, secretarial,
and clerical tasks such as drafting requests for medical records, making phone calls to follow-up


        4
         The Clerk’s Office of the Court of Federal Claims reported to the undersigned that Mrs.
Schuyler is not admitted to the Court’s Bar.
        5
            The following entries are examples and are not exhaustive; they merely provide a sampling.

                                                      4
on medical records, and setting up meetings.6 Additionally, there are instances of duplicative
billing,7 as well as entries of time to learn about the Vaccine Program.8 As set forth above, Mrs.
Schuyler’s time will be compensated for only those tasks that were supportive, i.e., paralegal in
nature. For these reasons, the undersigned finds that the requested $70,380.00,9 with the hourly
rate modification discussed above, should be further reduced by 10%. Applying the hourly rates
determined above, 187 hours at $300 per hour for Mr. Schuyler (or $56,100.00) and 17 hours at
$125 per hour for Mrs. Schuyler (or $2,125.00), renders an initial total of $58,225.00, from
which a 10% reduction as detailed above will be taken. Accordingly, $52,402.50 is awarded in
attorneys’ fees.

C.      Reasonable Costs

      Petitioner requested a total of $7,938.72 in attorneys’ costs. See Supp. Motion for Fees,
ECF No. 73. The requested costs consist of expert fees and costs associated with obtaining
medical records. Id. The undersigned finds petitioner’s requested costs to be reasonable.

                                     III. Total Award Summary

       Based on the foregoing, the undersigned awards the total of $60,341.22,10 representing
reimbursement for attorneys’ fees in the amount of $52,402.50 and costs in the amount of
$7,938.72, in the form of a check made payable jointly to petitioner and petitioner’s counsel,
Peter Schuyler, Esq. The Clerk of the Court is directed to enter judgment in accordance with this
Decision.11



        6
         See, e.g., Supp. Motion for Fees, ECF No. 73 at 2 (“Conference with records department staff at
Hudson Valley Hospital”); id. (“Conference with records staff at Westchester Medical Center”); id.
(“Conference at NY Presbyterian Hospital”); id. at 4 (“[S]cheduling appointment for review of medical
records”); id. at 6 (“[S]cheduling meeting”); id. at 12 (“Drafted request for records to NY Otolaryngology
Group”); id. (“Drafted request for records to NY Presbyterian”).
        7
         See, e.g., Supp. Motion for Fees, ECF No. 73 at 8, 11, 16 (listing various emails between the
Schuylers for case updates).
        8
          See, e.g., Supp. Motion for Fees, ECF No. 73 at 10 (“Legal research re vaccine case standards
and practice and review of vaccine rules”).
        9
           The Motion actually requests $70,372.80 in attorneys’ fees, but that total is based on a $7.20
mathematical error. Petitioner’s counsel advised the Court via email that there was an entry error on page
8 of petitioner’s Supplemental Motion for Fees, requesting $333 per hour instead of $345 per hour. See
Supp. Motion for Fees, ECF No. 73 at 8.
        10
           This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal
services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees
(including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of
Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
        11
          Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party filing a
notice renouncing the right to seek review.

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IT IS SO ORDERED.

                        s/ Mindy Michaels Roth
                        Mindy Michaels Roth
                        Special Master




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