         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 16-1467V
                                      Filed: June 28, 2019
                                         UNPUBLISHED


    LINDSAY HIATT,

                        Petitioner,
    v.                                                       Special Processing Unit (SPU);
                                                             Attorneys’ Fees and Costs;
    SECRETARY OF HEALTH AND                                  Administrative Time; First Class
    HUMAN SERVICES,                                          Airline Ticket;

                       Respondent.


Michael G. McLaren, Black McLaren Jones Ryland & Griffee, P.C., Memphis, TN, for
petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

                      DECISION ON ATTORNEYS’ FEES AND COSTS 1

Dorsey, Chief Special Master:

        On November 7, 2016, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that the Hepatitis B (“Hep B”) vaccine caused her to
develop a left-sided shoulder injury related to vaccine administration (“SIRVA”) and that
she experienced residual effects of this injury for more than six months. Petition at 1.
On December 12, 2018, the undersigned issued a decision awarding compensation to
petitioner based on the parties’ stipulation. ECF No. 57.


1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision 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 Because this unpublished decision contains a reasoned explanation for the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).
        On May 2, 2019, petitioner filed a motion for attorneys’ fees and costs. ECF No.
62. Petitioner requests attorneys’ fees in the amount of $35,122.20 and attorneys’ costs
in the amount of $2,978.64. Id. at 1. In compliance with General Order #9, petitioner
filed a signed statement indicating that petitioner incurred no out-of-pocket expenses.
ECF No. 62-3. Thus, the total amount requested is $38,100.84.

       On May 23, 2019, respondent filed a response to petitioner’s motion. ECF No.
63. Respondent states that “[n]either the Vaccine Act nor Vaccine Rule 13 requires
respondent to file a response to a request by a petitioner for an award of attorneys’ fees
and costs.” Id. at 1. Respondent adds, however, that he “is satisfied the statutory
requirements for an award of attorneys’ fees and costs are met in this case.” Id. at 2.
Respondent “respectfully recommends that the Chief Special Master exercise her
discretion and determine a reasonable award for attorneys’ fees and costs.” Id. at 3.

       Petitioner has filed no reply.

      The undersigned has reviewed the billing records submitted with petitioner’s
request and finds a reduction in the amount of fees to be awarded appropriate for the
reasons listed below.

       I.     Legal Standard

         The Vaccine Act permits an award of reasonable attorneys’ fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. Savin v. Sec’y of Health &
Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983)). 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.” Id. at 1522. Furthermore, the special master may reduce a fee
request sua sponte, apart from objections raised by respondent and without providing a
petitioner notice and opportunity to respond. Sabella v. Sec’y of Health & Human
Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line
analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of
Health & Human Servs., 102 Fed. Cl. 719, 729 (2011).

        The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24
Cl. Ct. at 482, 484 (1991). She “should present adequate proof [of the attorneys’ fees
and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434.
                                             2
          II.       Attorneys’ Fees

                    A. Hourly Rates

                       i.     Michael G. McLaren

        Petitioner requests the following rates for attorney Michael G. McLaren: $425 for
work performed in 2016, $440 for work performed in 2017, $456 for work performed in
2018 and $473.00 for work performed in 2019. ECF No. 68-2 at 38. For the 2016 –
2018 hourly rates these rates have been previously awarded to Mr. McLaren and the
undersigned awards them herein. Regarding the requested 2019 hourly rate of $473,
this amount exceeds Mr. McLarens’ experience range of attorneys with over 31 years’
experience. 3 The undersigned will award an increase, however reduces the requested
rate to $464 per hour. This results in a reduction in the amount of $0.90. 4

                    B. Excessive and Duplicative Billing

        The undersigned has previously reduced the fees paid to petitioners due to
excessive and duplicative billing. Ericzon v. Sec’y of Health & Human Servs., No. 10-
103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award
by 10 percent due to excessive and duplicative billing); Raymo v. Sec’y of Health &
Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691
(2016). The undersigned and other special masters have previously noted the
inefficiency that results when cases are staffed by multiple individuals and have reduced
fees accordingly. See Sabella, 86 Fed. Cl. at 209. Billing records show that three
attorneys, including two partners, and two law clerks billed time in this matter. Together
the staff billed 68 separate line item entries reviewing CMECF entries throughout the
case. This resulted a total of 9 hours billed or $2,759.10, in time billed reviewing the
notifications. The motion for attorney fees does not include supporting documentation
to support the necessity of having multiple people review and notate the same
notifications.

       The undersigned also finds that the total number of hours billed by the attorneys,
law clerks and paralegals regarding internal communications to be excessive. Over 14
hours was billed solely for the staff to discuss the case internally, draft and read internal
emails, inter-office meetings, developing case strategies, and preparing instructions for
staff with plans to proceed with the case. Examples of these entries include:

                •   August 18, 2016 (0.10 hrs) “Email to Carmen Garcia to coordinate
                    requesting records for client instructions medical records”

3
 The schedule for 2019 is available on the U.S. Court of Federal Claims website at
www.cofc.uscourts.gov/node/2914
4   This amount consists of $473 - $464 = $9 x 0.10 hrs - $0.90.
                                                      3
              •   November 7, 2016 (0.10 hrs) “Email to and from Chris Webb regarding
                  filing petition today”
              •   June 28, 2016 (0.10 hrs) “Correspondence to Samantha Ward regarding
                  requests to be sent”
              •   January 13, 2017 (0.10 hrs) “Discuss case status and develop strategy
                  going forward”
              •   January 30, 2017 (0.20 hrs) “Develop strategy and plan of action for
                  moving forward and note file for follow up”
              •   March 9, 2017 (0.10 hrs) “Correspondence from Chris Webb regarding
                  requesting orthopedic records”
              •   April; 5, 2017 (0.20 hrs) “Go over status report and office conference
                  regarding status of same”
              •   April 28, 2017 (0.20 hrs) “Oversee records collection”
              •   May 3, 2017 (0.40 hrs) “Correspondence with Chris Webb regarding
                  missing records”
              •   March 7, 2018 (0.30 hrs) “Confer with staff regarding missing records;
                  note file for follow up”

ECF No. 62-2 at 3,6,10-13 and 20. 5

                  C. Administrative Time

       Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the
attorneys’ fee rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of
Health & Human Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr.
Jan. 24, 2014). “[B]illing for clerical and other secretarial work is not permitted in the
Vaccine Program.” Mostovoy, 2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at
387). Examples of these entries include:

              •   November 7, 2016 (0.10 hrs) “Receive, review and note petition filing
                  notice”
              •   December 16, 2016 (0.10 hrs) “Work on scanning”
              •   December 16, 2016 (0.20 hrs) “Work on saving documents to subfile;
                  update provider chart; copy of records sent to Samantha Ward”
              •   December 28, 2016 (0.20 hrs) “Work on creating list for file folders”
              •   May 3, 2017 (0.30 hrs) “Receipt of medical records from Kinetix Physical
                  Therapy; work on scanning and saving to subfile; update provider chart;
                  correspondence to Chris Webb with copy of medical records attached”
              •   May 25, 2017 (0.10 hrs) “Conversation with Sherry Fearon regarding
                  payment of invoice”

5
    These are merely examples and not an exhaustive list.
                                                     4
                •   October 31,2017 (0.10 hrs) “Save to file status report filed yesterday”
                •   December 28, 2016 (0.10 hrs) “Work on creating list for file folders”

ECF No. 62-2 at 7, 9, 13-14 and 17. 6

        For the reasons listed above, the undersigned finds a reduction of fees
appropriate. The undersigned reduces the overall request for attorneys’ fees by 5%, for
a total reduction of $1,756.07.

          II.       Attorney Costs

       Petitioner seeks $2,815.92 in attorneys’ costs that include costs for travel,
medical records, postage and filing. Upon review the undersigned notices multiple
repeating issues regarding the amount of costs requested for reimbursement including
costs for airfare, meals and incidentals. All travel was billed by an associate attorney of
Black McLaren, attorney Chris Webb. Mr. Webb has previously had applications for
attorney fees and costs reduced for the same reasons listed below.

                    A. Airline Tickets

        The client visit took place between Sunday November 13 – Tuesday November
15, 2016, with a connection through Los Angeles, California. ECF No. 62-2 at 40. As
the petitioner lived in an area that in not located near a major airport, a second ticket
was needed from Los Angeles to San Luis Obispo, California. Id. at 45. Mr. Webb
submitted reimbursement for his first-class travel ticket from Memphis, Tennessee to
Los Angeles, California, in the amount of $924.70. Id. Mr. Webb attempted to justify
the first-class ticket by stating this was the “cheaper” option for a flight. Id. at 45. The
undersigned notes that airfare is subject to wide-ranging price differentials based upon,
other factors, the date on which the flight is booked, and one curated data point cannot
be extrapolated to show that a first-class flight was the most reasonable option of travel.
Mr. Webb has previously had requests for costs reduced for purchasing first class
airfare with the justification of it being the “cheaper” option. Wright v. Sec’y of Health &
Human Servs., No. 12-0423V, Slip Op. at 144 (Fed. Cl. Spec. Mstr. December 10,
2018). Because the Vaccine Program does not compensate for first-class airfare, the
undersigned reduces the amount of the airline ticket by half, a total reduction of
$462.35. 7

                    IV.   Conclusion



6   These are merely examples and not an exhaustive list.

7   This amount is consists of $924.70/2 = $462.35

                                                     5
     Based on the reasonableness of petitioner’s request, the undersigned GRANTS
IN PART petitioner’s motion for attorneys’ fees and costs.

        Requested attorneys’ fees:                                                            $35,122.20
        Reductions:                                                                           - 1,756.97

        Adjusted Fees Total:                                                                  $33,365.23

        Requested attorney costs:                                                              $2,815.92
        Reductions:                                                                            - 462.35
        Adjusted Costs Total:                                                                  $2,353.57

        Total Attorneys’ Fees and Costs Awarded:                                              $35,718.80


      Accordingly, the undersigned awards the total of $35,718.80 8 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Michael G. McLaren.

        The clerk of the court shall enter judgment in accordance herewith. 9

IT IS SO ORDERED.

                                                           s/Nora Beth Dorsey
                                                           Nora Beth Dorsey
                                                           Chief Special Master




8 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).
9 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
                                                      6
