         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 17-0407V
                                      Filed: June 28, 2019
                                         UNPUBLISHED


    RONALD WAGNER,

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

                       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 March 22, 2017, 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 he suffered Guillain-Barre Syndrome (“GBS”) as
a result of an influenza (“flu”) vaccine he received on November 23, 2015, and that he
experienced residual effects of this injury for more than six months. Petition at 1, 4. On
February 5, 2019, the undersigned issued a decision awarding compensation to
petitioner based on the parties’ stipulation. ECF No. 46.


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 Because this unpublished decision contains a reasoned explanation for the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.
51. Petitioner requests attorneys’ fees in the amount of $31,569.90 and attorneys’
costs in the amount of $2,949.23. 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. 51-3. Thus, the total amount requested is $34,519.13.

       On May 23, 2019, respondent filed a response to petitioner’s motion. ECF No.
52. 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. See 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. See 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 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. For the 2016 – 2018 hourly rates, the
undersigned finds no cause to reduce these rates as they have been previously
awarded. Regarding the requested 2019 rate, this amount exceeds the range for
attorneys with over 31 years’ experience. 3 The undersigned reduces the requested
2019 for Mr. McLaren to $464 per hour. This reduces the request for attorneys’ fees in
the amount of $8.10.

                  B. Excessive and Duplicative Billing

        The undersigned has previously reduced the fees paid to petitioners due to
excessive and duplicative billing. See 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 the electronic notifications of
filings on the Court’s docket. This resulted a total of 9.7 hours billed or $3,092.80, 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 their internal communications to be excessive.
Over 17 hours was billed for the attorneys and law clerks to discuss the case amongst
themselves, draft and read internal emails, inter office meetings, developing case
strategies, and preparing instructions for staff and plans to proceed with the case.
Examples of these entries include:

              •   December 22, 2016 (0.10 hrs) “Email correspondence to Chris Webb and
                  Carmen Garcia regarding requesting 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

                                                   3
              •   January 5, 2017 (0.10 hrs) “Correspondence to Samantha Ward regarding
                  issue with release”
              •   January 10, 2017 (0.30 hrs) “Go over the issues, the problems the case,
                  and discuss with Chris Webb”
              •   January 30, 2017 (0.40 hrs) “Assist with development of case theory,
                  strategy and plan”
              •   October 17, 2017 (0.10 hrs) “E-mails to Chris Webb and Carmen Garcia
                  with Devlin updates and information on new provider”
              •   November 28, 2017 (0.10 hrs) “Confer with staff regarding statement of
                  completion”
              •   December 7, 2017 (0.20 hrs) “Intra-office meeting with staff to discuss
                  path forward, where we stand now, necessary activity and impending
                  dates”
              •   May 7, 2018 (0.10 hrs) “Conference with Christ Webb regarding case
                  status, today’s deadlines, etc.”

ECF No. 51-2 at 1-4, 11, 13-14 and 17. 4

                  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:

              •   December 27, 2016 (0.10 hrs) “Work on scanning”
              •   January 9, 2017 (0.10 hrs) “Work on scanning and saving documents to
                  subfile”
              •   January 17, 2017 (0.10 hrs) “Work on creating file folder for James Devlin,
                  MD”
              •   March 22, 2017 (0.10 hrs) “Receive, review and note filing payment
                  receipt”
              •   October 16, 2017 (0.20 hrs) “Refax requests to providers”
              •   October 17, 2017 (0.20 hrs) “Phone call to Dr. Devlin’s office to pay
                  invoice for medical records via credit card”
              •   October 23, 2017 (0.10 hrs) “Receipt and review of processing update
                  from MRO; Work on scanning and saving”
              •   November 8, 2017 (0.20 hrs) “Work on paying invoices online”

4
    These are examples and not an exhaustive list.
                                                     4
ECF No. 51-2 at 1-3, 7, and 11-12. 5

        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 $1,578.09.

          II.     Attorney Costs

        Petitioner seeks $2,949.23 in attorneys’ costs that include costs for travel,
medical records, postage and filing. Upon review the undersigned notices several
issues regarding the amount of costs requested for reimbursement including costs for
airfare, meals and incidentals.

                  A. Hotel Rates and Valet Parking

        Attorney Chris Webb, traveled from Memphis, TN to Pittsburgh, PA, to met with
the client from February 27 – March 1, 2017. For his hotel stay, Mr. Webb is requesting
a total of $577.69 in reimbursement for his hotel stay at the Westin Hotel & Resorts,
Pittsburgh, Pennsylvania on February 27 and 28, 2017. The receipts submitted show
nightly rate of $204.82, which exceeds the per diem rate for a hotel stay for 2017. 6 The
undersigned reduces the nightly rate to the per diem costs of $129 per night. This
reduces the request for attorney costs in the amount of $151.64. 7

       During his stay in Pittsburgh, Mr. Webb used valet parking at the hotel at a cost
of $26.00 per day, plus tips, for a total of $72.00. ECF no. 51-2 at 23 and 35. Special
Masters have previously declined to compensate counsel for valet parking absent a
showing of necessity. See Kreten v. Sec’y of Health and Human Services, No. 15-
0504V, slip op. at 8 (Fed. Cl. Spec. Mstr. Nov. 30, 2018) (reducing the costs incurred for
valet parking when counsel "failed to substantiate why it was necessary to valet park
her car each day she was there when other parking arrangements were no doubt
available and less expensive.”). The undersigned reduces the request for attorneys’
costs by $72.00.

                  B. Meals

       Just as with the hotel rates, Mr. Webb exceeded the daily per diem rate for
meals, including purchasing extravagant meals such as a meal The Capital Grille in
Pittsburgh, Pennsylvania for $103.42. ECF No. 68-2 at 54. On February 27, 2017 Mr.

5   These are examples and not an exhaustive list.
6
  See GSA FY 2017 Per Diem Rates for Pittsburg, Pennsylvania at https://www.gsa.gov/travel/plan-
book/per-diem-rates.
7   This amount consists of $204.82 - $129 = $75.82 x 2 nights = $151.64.
                                                     5
Webb spent $65.10 on meals, on February 28, 2017 he spent $110.89 on meals and on
March 1, 2017, Mr. Webb spent $21.30 in meals. Id. at 51-2 at 30 and 35. For
Pittsburgh, Pennsylvania the 2017 per diem on meals is $40.50 on the first and last day
of travel and $54 for each day during travel. 8 Other special masters have previously
reduced Black McLaren attorneys, Mr. Webb included, for excessive expenditures on
meals during travel. Reichert v. Sec’y of Health & Human Servs. No. 16-0697V, 2018
WL 3989429, at *4, (Fed. Cl. Spec. Mstr. December 4, 2018), Dempsey v. Sec’y of
Health & Human Servs., No. 04-0394V, 2017 WL 6343870, at *9 (Fed. Cl. Spec. Mstr.
November 16, 2017), Mohr v. Sec’y of Health & Human Servs., No. 16-1139V, Slip Op.
at 28, *2. The meals purchased on March 1, 2017 are within the per diem and awarded
herein. For the meals purchased on February 27 and 28th the undersigned reduces the
costs to the appropriate per diem rate, resulting in a reduction of the request for
attorneys’ costs in the amount of $81.49. 9

          IV.     Conclusion

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

          Requested attorneys’ fees:                                                        $31,569.90
          Reductions:                                                                       - 1,586.19

          Adjusted Fees Total:                                                              $29,983.71

          Requested attorney costs:                                                           $2,949.23
          Reductions:                                                                         - 305.13
          Adjusted Costs Total:                                                               $2,644.10



      Accordingly, the undersigned awards the total of $32,627.81 10 as a lump
sum in the form of a check jointly payable to petitioner and petitioner’s counsel
Michael G. McLaren.



8See GSA FY 2017 Per Diem Rates for Pittsburg, Pennsylvania at https://www.gsa.gov/travel/plan-
book/per-diem-rates.

9   This amount consists of ($65.10 - $40.50 = $24.60) + ($110.89 - $54.00 = $56.89) = $81.49.

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).

                                                     6
        The clerk of the court shall enter judgment in accordance herewith. 11

IT IS SO ORDERED.

                                                          s/Nora Beth Dorsey
                                                          Nora Beth Dorsey
                                                          Chief Special Master




11Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
                                                     7
