Zuckerman v. Secretary of Health and Human Services
18-1800
| Fed. Cl. | Jul 20, 2021Background
- Petitioner Mitchell Zuckerman filed a Vaccine Act petition on Nov. 21, 2018, alleging chronic inflammatory demyelinating polyneuropathy (CIDP) after an influenza vaccination on Sept. 7, 2016.
- The parties executed a stipulation of judgment awarding compensation, which the Special Master adopted on Jan. 12, 2021.
- Petitioner filed a final application for attorneys’ fees and costs on Apr. 4, 2021, seeking $17,183.47 ($16,052.80 in fees; $1,130.67 in costs).
- Respondent did not oppose the award and asked the Special Master to exercise discretion to determine a reasonable amount.
- Special Master Roth reviewed proposed hourly rates (Bridget McCullough: $225/hr for 2018–2019; $250/hr for 2020; $275/hr for 2021), the billed hours, and documented costs, and found them reasonable.
- The Special Master awarded the full requested lump sum of $17,183.47, payable jointly to petitioner and counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorneys' fees and costs | Zuckerman sought fees/costs under §15(e)(1) following the stipulation-based award. | Respondent agreed statutory requirements were met and deferred to Special Master's discretion. | Award granted; petitioner entitled to reasonable fees/costs after stipulated compensation. |
| Appropriate legal standard for fee calculation | Apply lodestar: reasonable hours × reasonable forum hourly rates. | Agreed lodestar applies; asked Special Master to determine reasonableness. | Lodestar applied; forum rates used per McCulloch framework and applicable exceptions noted. |
| Reasonableness of hourly rates | Requested $225 (2018–19), $250 (2020), $275 (2021) for Ms. McCullough as consistent with prior awards. | No objection to the requested rates. | Rates found reasonable and consistent with prior Vaccine Program awards. |
| Reasonableness of hours and costs billed | Submitted billing entries and documentation for hours, medical-records/postage/filing fees; sought full reimbursement. | No substantive objections to entries or costs. | Hours and costs reviewed and found reasonable; full amount awarded ($16,052.80 fees; $1,130.67 costs). |
Key Cases Cited
- Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343 (Fed. Cir. 2008) (endorses lodestar approach for Vaccine Act fees)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (lodestar methodology basis)
- Sebelius v. Cloer, 133 S. Ct. 1886 (U.S. 2013) (fee award automatic for petitioners who succeed on merits)
- Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381 (Fed. Cir. 2011) (forum-rate principle and limited Davis County exception)
- Hall v. Sec'y of Health & Human Servs., 640 F.3d 1351 (Fed. Cir. 2011) (discusses Davis County exception)
- Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. EPA, 169 F.3d 755 (D.C. Cir. 1999) (origin of local-rate exception)
- Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517 (Fed. Cir. 1993) (hours must be reasonably expended)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (limits on recovering for excessive or unnecessary hours)