    In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                     Filed: December 28, 2017

* * * * * * * * * * * * * *                    *
GIDGET MILLER,                                 *
                                               *       No. 16-898V
               Petitioner,                     *       Special Master Sanders
                                               *
v.                                             *
                                               *       Attorneys’ Fees and Costs; Reduced
SECRETARY OF HEALTH                            *       Travel Rate; Personal Litigation Costs.
AND HUMAN SERVICES,                            *
                                               *
          Respondent.                          *
* * * * * * * * * * * * * *                    *

Michael McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner.
Ilene Albala, U.S. Department of Justice, Washington, DC, for Respondent.

                     DECISION ON ATTORNEYS’ FEES AND COSTS1

       On July 27, 2016, Monica Miller filed a petition on behalf of her minor daughter, Gidget
Miller (“Petitioner”), for compensation pursuant to the National Vaccine Injury Compensation
Program.2 42 U.S.C. §§ 300aa-1 to -34 (2012). Petitioner later filed an unopposed motion to
amend the caption of case to reflect the fact that Gidget Miller reached the age of majority, which
was granted. Motion, ECF No. 19; Order, ECF No. 20. Petitioner alleged that as a result of “HPV
and/or varicella vaccinations administered on August 8, 2013, and/or the HPV vaccination
administered on October 22, 2013,” she suffered narcolepsy, cataplexy, neurologic and/or physical
impairments and other injuries,” or significant aggravation of existing conditions. Petition at
Preamble, ECF No. 1. On September 28, 2017, Petitioner moved for a decision dismissing her

1
  This decision shall be posted 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). 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 § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion
for redaction must include a proposed redacted decision. If, upon review, the undersigned agrees
that the identified material fits within the requirements of that provision, such material will be
deleted from public access.
2
  The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (2012)
(hereinafter “Vaccine Act” or “the Act”). Hereinafter, individual section references will be to 42
U.S.C. § 300aa of the Act.
                                                   1
claim due to her inability to “secure sufficient and/or persuasive evidence to prove entitlement to
compensation in the Vaccine program.” Motion, ECF No. 32. The undersigned dismissed the
case for insufficient proof. Decision, ECF No. 33.

        On October 27, 2017, Petitioner filed an application for attorneys’ fees and costs.
Petitioner requested attorneys’ fees in the amount of $43,141.00, attorneys’ costs in the amount of
$5,042.12, and reimbursement for personal litigation costs in the amount of $129.60. See Pet’r’s
Mot. Att’ys’ Fees and Costs at 1, ECF No. 38. In his response, Respondent indicated that “[t]o
the extent the Special Master is treating [P]etitioner’s request for attorneys’ fees and costs as a
motion that requires a response from [R]espondent . . . Respondent is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Resp’t’s Resp. at 2,
ECF No. 39. Respondent recommended that the undersigned “exercise her discretion and
determine a reasonable award for attorneys’ fees and costs.” Id. at 3. 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., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). 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).

        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. The petitioner bears the burden of providing adequate evidence to
prove that the requested hourly rate is reasonable. Id.

           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


                                                  2
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 and 2017 can be accessed online.3

        Petitioner requests different hourly rates for work performed by a paralegal, two law clerks,
and three attorneys at the law firm Black McLaren Jones Ryland & Griffee (“BMJRG”).
Petitioner’s attorneys’ firm has previously been awarded forum rates. See Henry v. Sec’y of Health
& Human Servs., No. 15-545V, 2016 WL 7189925 *10 (Fed. Cl. Spec. Mstr. Nov. 4, 2016).

        Petitioner requests $135 per hour for work performed by Laura Holdford, a paralegal, in
2015. Motion at 10, ECF No. 38. Petitioner’s motion indicates that “BMJRG utilizes highly
qualified staff, paralegals, and law clerks on all of its vaccine cases,” but does not provide specific
detail regarding Ms. Holdford’s skill level. Id. at 8. The undersigned finds the requested rate for
Ms. Holdford reasonable as it is in the middle of the range for paralegals in the fee schedule for
2015-2016. Therefore, the undersigned awards Petitioner the requested rate for Ms. Holdford.

        Petitioner requests $145 for work performed in 2015 and 2016, and $148 for work
performed in 2017, by law clerks Samantha Ward and Carmen Garcia. Motion at 10, ECF No. 38.
Ms. Ward holds a Juris Doctor degree, and Ms. Garcia was a law student for 1.5 years. Id. at 8-9.
The undersigned finds the requested rates for Ms. Ward and Ms. Garcia reasonable, as they are
within the paralegal range in the fee schedules. Therefore, the undersigned awards Petitioner the
requested rates for Ms. Ward and Ms. Garcia.

        Petitioner requests $425 and $440 per hour for work performed by attorney Michael
McLaren in 2016 and 2017, respectively. Motion at 10, ECF No. 38. Mr. McLaren has been an
attorney since 1976, and has practiced in the Vaccine Program since its inception. Id. at 5.
Therefore, Mr. McLaren is an experienced Vaccine Program attorney who had forty years of
practice experience when he began work in this case. The undersigned finds the requested rates
reasonable as they do not exceed the ranges in the fee schedules for attorneys with his level of
experience. Therefore, the undersigned awards Petitioner the requested rates for Mr. McLaren.

       Petitioner requests $355 and $365 per hour for work performed by attorney William
Cochran, Jr. in 2016 and 2017, respectively. Motion at 10, ECF No. 38. Mr. Cochran has been an
attorney since 2001, and has represented petitioners in the Vaccine Program since 2003. Id. at 6.
Most of his law practice is comprised of vaccine work. Id. Therefore, Mr. Cochran is an
experienced Vaccine Program attorney who had 15 years of experience in practice when he began
work in this case. The undersigned finds the requested rates reasonable as they do not exceed the


3
  The 2015-2016 Fee Schedule can be accessed at: http://www.uscfc.uscourts.gov/sites/default/
files/Attorneys-Forum-Rate-Fee-Schedule-2015-2016.pdf. The 2017 Fee Schedule can be
accessed      at:   http://www.uscfc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-
Schedule-2017.pdf. The hourly rates contained within both schedules are updated from the
decision in McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed.
Cl. Spec. Mstr. Sept. 1, 2015).


                                                  3
ranges in the fee schedules for attorneys with his level of experience. Therefore, the undersigned
awards Petitioner the requested rates for Mr. Cochran.

        Petitioner requests $295, $305, and $315 per hour for work performed by attorney Chris
Webb in 2015, 2016, and 2017, respectively. Motion at 10, ECF No. 38. Mr. Webb has been an
attorney since 2007, and has practiced in the Vaccine Program since 2008. Id. at 7. Ninety percent
of his full time law practice consists of vaccine-related work. Id. at 8. Therefore, Mr. Webb is an
experienced Vaccine Program attorney who had eight years of experience in practice when he
began work in this case. The undersigned finds the requested rates reasonable as they do not
exceed the ranges in the fee schedules for attorneys with his level of experience. Therefore, the
undersigned awards Petitioner the requested rates for Mr. Webb.

        Although Mr. Webb’s hourly rate is reasonable for an attorney with his experience,
Petitioner also requested Mr. Webb’s full hourly rate for two dates of travel in 2016. Motion Ex.
2 at 9-10, ECF No. 38-2. In Petitioner’s motion, she argues that the undersigned “should award
Petitioner’s counsel compensation at his full hourly rate for time spent traveling on the case.”
Motion at 10, ECF No. 38. She explained that “Petitioner’s counsel makes it a habit to work on
the case while traveling when possible, such as on an airplane or while waiting on a layover in an
airport, and counsel did so in this case where indicated on the attached fee bill.” Id. Petitioner
also cites a non-Vaccine Federal Circuit case, Crumbaker, in support of the proposition that the
full hourly rate should apply during travel even where counsel is not working on the case. Id.
(citing Crumbaker v. MSPB, 781 F.2d 191, 193-94 (Fed. Cir. 1986), modified on other grounds,
827 F.2d 761 (Fed. Cir. 1987)).

       In Gruber, the Court of Federal Claims rejected the assertion that Crumbaker requires
compensation of an attorney’s full rate for travel time in every circumstance. 91 Fed. Cl. 773, 790
(2010). Consistent with the decision in Gruber, where the attorney does not provide
documentation that he performed work while traveling, the undersigned grants half of the
attorney’s rate for traveling. Id.; see also Amani v. Sec’y of Health & Human Servs., No. 14-150V,
2017 WL 772536, at *5 (Fed. Cl. Spec. Mstr. Jan. 31, 2017). Therefore, for travel time in 2016
where Mr. Webb did not document that he was performing work on the case, his hourly rate is
reduced to $152.50.

         On the first date of travel, August 15, 2016, Mr. Webb billed for eight hours of time, and
the billing entry reflects the following: “Travel from Memphis to El Paso, TX for meeting with
client tomorrow; review file and medical records while in flight in preparation for meeting.”
Motion Ex. 2 at 9, ECF No. 38-2 (emphasis added). Although he billed his full rate for eight hours
of travel time, other documentation reflects that the flight was only 5.5 hours in duration. Id. at
45. Therefore, Mr. Webb’s hourly rate will be reduced for the 2.5 hours of travel time where he
did not document the performance of work on the case. The fee reduction for the 2.5 hours of
travel time on August 15, 2016 is $381.25. On the second date of travel, August 17, 2016, Mr.
Webb billed for 10.5 hours, and the billing entry reflects the following: “Travel back to Memphis
from El Paso after meeting with client; develop strategy and plan of action for positioning case for
possible settlement and consider what experts we are going to need while traveling (delays in
Atlanta lengthened trip).” Id. at 9-10. The undersigned finds that the documentation for that date
is sufficient to award the full 10.5 hours billed at Mr. Webb’s full hourly rate. Therefore, the total


                                                  4
fee reduction for travel time where Mr. Webb did not document that he was performing work on
the case is $381.25.

           b. Hours Expended

         Petitioner requests compensation for 151.80 hours entered by the paralegal, law clerks, and
attorneys at Black McLaren Jones Ryland & Griffee. Petitioner submitted adequate billing logs
listing the date, amount of time, individual, and the nature of each task. Based on the lack of
objection from Respondent and my review of Petitioner’s motion, I find that the hours expended
are reasonable and should be awarded in full.

           c. Attorney’s 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
$5,042.12 in attorneys’ costs. These costs are associated with medical record retrieval, a filing
fee, travel expenses incurred by Mr. Webb, expert expenses,4 and a mileage fee for law clerk
Carmen Garcia. See Motion Ex. 2 at 25-26.

        The undersigned finds that the expense of $4.28 incurred on July 10, 2017 and listed as
“Mileage – Carmen Garcia” is not reasonable. Id. at 26. There is nothing in the itemized fee bill
reflecting travel by Ms. Garcia on that date, and there is no documentation to support the
reimbursement of mileage. This reduction totals $4.28. The undersigned finds that the remainder
of the attorneys’ costs are reasonable.

    II.    Litigation Costs

    Petitioner submitted a declaration stating that Petitioner incurred an expense of $129.60 in
pursuing this case. The total cost claimed is for mileage incurred by Petitioner’s mother, who was,
at the time, Petitioner on behalf of her minor child. Petitioner claims 240 miles round trip from
Truth or Consequences, New Mexico to El Paso, Texas to meet with Petitioner’s counsel in August
2016, at the 2016 IRS mileage rate of $0.54 per mile. The undersigned finds Petitioner’s
declaration to be adequate documentation for her litigation fees, and thus awards her the full
amount requested.




4
  Although no expert report was filed in this case, Petitioner retained Merrill S. Wise, M.D. as an
expert. Motion Ex. 2 at 53, ECF No. 38-2. Dr. Wise charged $400 per hour for 5 hours of medical
record review and 1.25 hours of consultation with Petitioner’s attorney regarding his opinion.
Motion Ex. 3 at 1, ECF No. 40-1. The undersigned finds these expenses reasonable in light of Dr.
Wise’s qualifications and the lack of objection by the Respondent. Motion Ex. 4, ECF No. 40-2.
                                                 5
    III.      Conclusion

       Based on all of the above, the undersigned finds that Petitioner is entitled to the following
award of reasonable attorneys’ fees and costs and personal litigation costs:

           Attorneys’ Fees Requested                                        $43,141.00
           (Reduction to Mr. Webb’s Travel Rate in 2016)                    - $381.25
           Total Attorneys’ Fees Awarded                                    $42,759.75

           Attorney’s Costs Requested                                       $5,042.12
           (Reduction of Undocumented Expense for Mileage)                  - $4.28
           Attorneys’ Costs Awarded                                         $5,037.84

           Total Attorneys’ Fees and Costs Awarded                          $47,797.59

           Total Personal Litigation Costs Awarded                              $129.60

        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, other than those reductions delineated above, is reasonable. Accordingly, the undersigned
hereby awards a total of $47,927.19 as follows:

                 The total of $47,797.59, in the form of a check made payable jointly to
                  Petitioner and Petitioner’s counsel, Michael McLaren, of Black McLaren, et
                  al., PC, for attorneys’ fees and costs;5
                 The total of $129.60, in the form of a check made payable to Petitioner, Gidget
                  Miller, for her litigation 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.6

           IT IS SO ORDERED.

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


5
  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).
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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