In the United States Court of Federal Claims
                               OFFICE OF SPECIAL MASTERS
                                    Filed: August 27, 2020

* * * * * * * * * * * * *  *                              UNPUBLISHED
FRED A. STOVER,            *                              No. 17-952V
                           *                              Special Master Horner
         Petitioner,       *
                           *
v.                         *
                           *
SECRETARY OF HEALTH        *                              Attorneys’ Fees and Costs
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Rudolph L. Massa, Massa Law Group, PC, Pittsburgh, PA, for Petitioner.
Adriana R. Teitel, United States Department of Justice, Washington, DC, for Respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS1

        On July 14, 2017, Fred A. Stover (“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 the influenza vaccine he received on October 14, 2014 caused him to suffer
Guillain-Barré syndrome. Petition at 1. On October 16, 2019, the parties filed a stipulation for
award, which I adopted as my decision awarding compensation on the same day. (ECF NO. 38).

      On April 16, 2020, petitioner filed an application for final attorneys’ fees and costs. (ECF
No. 43) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of
$48,416.47 (representing $45,892.00 in fees and $2,524.47 in costs). Fees App. at 2. Pursuant to
General Order No. 9, petitioner states that he has not incurred any out-of-pocket costs in pursuing

1
 I intend 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, I agree that the identified material fits
within this definition, I will redact such material from public access. Because this unpublished ruling
contains a reasoned explanation for the action in this case, I am 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).
his claim. Fees App. Ex. 3. Respondent responded to the motion on April 28, 2020, indicating that
“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are
met in this case.” Resp. at 2 (ECF No. 44). Petitioner did not file a reply thereafter.

       This matter is now ripe for consideration.

I.     Reasonable Attorneys’ Fees and Costs

          The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). 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., 

, 1347 (Fed.
Cir. 2008). This is a two-step process.

First, a court determines an “initial estimate
. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.’”

Stenson, 

, 888 (1984)). Second, the court may
make an upward or downward departure from the initial calculation of the fee award based on
specific findings.

        It is “well within the special master’s discretion” to determine the reasonableness of fees.
Saxton v. Sec’y of Health & Human Servs., 

, 1521–22 (Fed. Cir. 1993); see also Hines
v. Sec’y of Health & Human Servs., 

, 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., 

, 316–18 (2008). Such applications, however,
should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” 

(quoting Hensley v. Eckerhart, 

, 434 (1983)).

        Reasonable hourly rates are determined by looking at the “prevailing market rate” in the
relevant community. See 

. The “prevailing market rate” is akin to the rate
“in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.”

n.11. Petitioners bear the burden of providing adequate evidence to prove
that the requested hourly rate is reasonable.

reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 

, 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., 

, 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., 

, 484 (1991), rev’d on other grounds and aff’d in relevant
part, 

(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.” 

.

       a. Hourly Rates


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        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, 

, at *19 (Fed. Cl. Spec. Mstr. Sept. 1,
2015), motion for recons. denied, 

(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, 2019, and 2020 can be accessed online.3

        Petitioner requests that his attorney, Mr. Rudolph Massa, be compensated at $500.00 per
hour for all work performed in this case, from 2015-2020. Petitioner also requests that all paralegal
work be compensated at $140.00 per hour. These rates are excessive and require reduction. Other
special masters who have considered Mr. Massa’s hourly rates found them to be excessive because
they exceed the highest possible rates which the Court would award for any attorney work in the
Vaccine Program. See Henderson v. Sec’y of Health & Human Servs., No. 18-193V, 

, at *2 (Fed. Cl. Spec. Mstr. Nov. 26, 2019) (further noting that “[a]lthough Mr. Massa is
an experienced attorney overall, his experience within the Vaccine Program is very limited, having
only a total of seven cases in the Program since 2011”); see also Johns v. Sec’y of Health & Human
Servs., No. 15-1226V, 

(Fed. Cl. Spec. Mstr. May 7, 2018).

        I will therefore compensate Mr. Massa’s work at the hourly rates which have previously
been found reasonable for his work: $306.00 per hour for 2015, $312.00 per hour for 2016, $320.00
per hour for 2017, $340.00 per hour for 2018, and $365.00 per hour for 2019. I also find that it is
reasonable to increase Mr. Massa’s hourly rate for 2020 and shall award him $395.00 per hour for
that time billed. Application of these rates results in a reduction of $14,161.40.4

       The requested paralegal rates also exceed what has previously been found reasonable,
which are $127.00 per hour for 2015, $130.00 per hour for 2016, and $135.00 per hour for 2017.
However, the undersigned notes that the billed paralegal hours in 2019 in this case are less than
what was previously awarded ($145.00 per hour) and that paralegal time billed in 2020 would also
be deserving of an increase to $150.00 per hour. Application of these rates ultimately results in a
reduction of $90.00.5

3
    The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914.
4
 2015: ($500 requested - $306 awarded) * 2.8 hours billed = $543.20
2016: ($500 requested - $312 awarded) * 2.4 hours billed = $451.20
2017: ($500 requested - $320 awarded) * 47.6 hours billed = $8,568.00
2018: ($500 requested - $340 awarded) * 20.4 hours billed = $3,264.00
2019: ($500 requested - $365 awarded) * 9.5 hours billed = $1,282.50
2020: ($500 requested - $395 awarded) * 0.5 hours billed = $52.50
5
  I note that the instant case is the fourth time that Mr. Massa has submitted a motion for attorneys’ fees
and costs in which he requests $500.00 per hour for his work (also including Johns, No. 15-1226V,
Olsavicky, No. 17-1806V, and Henderson, No. 18-193V). In all of these cases, Mr. Massa has had his
hourly rate reduced. This is because not only has $500.00 per hour been rejected as a reasonable hourly
rate for Mr. Massa based upon, among other factors, his overall experience, his Vaccine Program
experience, and his locale, but also because $500.00 would be ruled by this Court to be unreasonably high
for any attorney practicing in the Vaccine Program. Mr. Massa’s continued submission of fees motions

                                                     3
        b. Hours Expended

         Attorneys’ fees are awarded for the “number of hours reasonably expended on the
litigation.” 

. Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” 

. While attorneys may be
compensated for non-attorney-level work, the rate must be comparable to what would be paid for
a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 

, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be
billed at all, regardless of who performs them. See, e.g., McCulloch, 

, at *26.

        Upon review, the overall number of hours billed appears to be reasonable. Petitioner is
therefore awarded final attorneys’ fees of $31,640.60.

        c. Attorneys’ Costs

         Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 

, 34 (Fed. Cl. 1992). Petitioner requests
a total of $2,524.47 in attorneys’ costs. This amount comprises the cost of obtaining medical
records and the Court’s filing fee. Petitioner has provided adequate documentation supporting
these costs and they appear to be reasonable in my experience. Accordingly, petitioner is awarded
the full amount of attorneys’ costs sought.

II.     Conclusion

       Based on all the above, I find that petitioner is entitled to the following award of reasonable
attorneys’ fees and costs:

 Attorneys’ Fees Requested                                               $45,892.00
 (Reduction to Fees)                                                   - ($14,251.40)
 Total Attorneys’ Fees Awarded                                           $31,640.60

 Attorneys’ Costs Requested                                               $2,524.47
 (Reduction of Costs)                                                         -
 Total Attorneys’ Costs Awarded                                           $2,524.47

 Total Attorneys’ Fees and Costs                                         $34,165.07

which reflect an hourly rate that has been rejected on numerous occasions places undue burden on the
Court to tally up his hours and apply the necessary reductions. See, e.g. Ramirez v. Sec'y of Health &
Human Servs., No. 16-1180V, 

, at *2 (Fed. Cl. Spec. Mstr. Jan. 30, 2019) (noting that
counsel “should only submit billing logs that reflect the hourly rate previously awarded to him.”). I also
note that Mr. Massa did not appeal any of these previous rate determinations and reductions. Accordingly,
Mr. Massa’s hourly rates for his Vaccine Program work are well-settled. Mr. Massa is cautioned that
future attorneys’ fees motions which request unreasonable hourly rates will be rejected and Mr. Massa
will be requested to re-submit the fees motion with the correct rates.


                                                    4
        In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the
billing records and costs in this case and finds that petitioner’s request for fees and costs, other
than the reductions delineated above, is reasonable. Accordingly, I award a lump sum in the
amount of $34,165.07, representing reimbursement for petitioner’s attorneys’ fees and costs,
in the form of a check payable to petitioner and his attorney, Mr. Rudolph Massa.

       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.6

        IT IS SO ORDERED.


                                                 s/Daniel T. Horner
                                                 Daniel T. Horner
                                                 Special Master




6
  Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek
review. Vaccine Rule 11(a).

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