    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 18-0959V
                                        (not to be published)


    DEBORAH SPIVEY,
                                                                Chief Special Master Corcoran
                         Petitioner,
    v.                                                          Filed: December 12, 2019


    SECRETARY OF HEALTH AND                                     Special Processing Unit (SPU);
    HUMAN SERVICES,                                             Attorney’s      Fees      and    Costs;
                                                                Administrative      Time;     Excessive
                         Respondent.                            Billing; First Class Airfare



Michael G. McLaren, Black McLaren et al., P.C., Memphis, TN, for Petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.

                       DECISION ON ATTORNEY’S FEES AND COSTS 1

       On July 2, 2018, Deborah Spivey (“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 she suffered Shoulder Injury Related to
Vaccine Administration as a result of her October 6, 2017 influenza vaccination. (Petition
at 1). On August 23, 2019, a decision was issued by then-Chief Special Master Dorsey,
awarding compensation to Petitioner based on the parties’ stipulation. (ECF No. 29).



1  Because this unpublished decision contains a reasoned explanation for the action in this case, I am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). 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, I agree that the identified material fits within this definition, I will redact such material from
public access.

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).
       Petitioner has now filed a motion for attorney’s fees and costs, dated October 11,
2019, (ECF No. 33), requesting a total award of $20,564.49 (representing $18,574.10 in
fees and $1,990.39 in costs). In accordance with General Order #9, counsel for Petitioner
filed a signed statement indicating that Petitioner incurred no out-of-pocket expenses.
(ECF No. 33-3). Respondent reacted to the motion on October 21, 2019 indicating that
he is satisfied that the statutory requirements for an award of attorney’s fees and costs
are met in this case and defers to the Court’s discretion to determine the amount to be
awarded. (ECF No. 34). Petitioner did not file a reply thereafter.

       For the reasons set forth below, I hereby GRANT Petitioner’s motion awarding final
attorney’s fees and costs in the amount of $18,036.89.

                                       ANALYSIS

       The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42
U.S.C. §300aa-§ 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 attorney’s 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
                  A. Hourly Rates

       I have reviewed the rates requested by Petitioner for the work of the various
attorneys and legal staff who worked on this case (the billing invoices indicate that most
of the time billed was performed by Christopher Webb, plus some law clerks and
paralegals). I find the rates requested to be consistent with what has been previously
awarded to Black McLaren attorneys and also consistent with the Office of Special
Masters fee schedules. 3

                  B. Excessive and Duplicative Billing

       Special masters have 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).
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.
       The attorneys at Black McLaren have previously had requests for attorney’s fees
reduced for excessive and duplicate billing. See Wagner v. Sec’y of Health & Human
Servs., No. 17-0407V, 2019WL4303281 (Fed. Cl. Spec. Mstr. June 28, 2019);
Digerolamo v. Sec’y of Health & Human Servs., No. 16-0920V, 2019 WL 4305792 (Fed.
Cl. Spec. Mstr. June 28, 2019). In reviewing the invoices submitted, I found that multiple
attorneys and staff members reviewing the same documents and filings. Examples of
these include:

              •   June 28, 2018 SRW (0.10 hrs) “Receipt/review, note and save to file client’s
                  affidavit”; CJW (0.20 hrs) “Receive, review and note signed affidavit and
                  work on getting petition on record”;
              •   July 3, 2018 SRW (Receipt/review and note assignment of case to Special
                  Master Dorsey; update file”; CJW (0.10 hrs) “Receipt/review and note
                  assignment of assignment to Special Master”;
              •   February 27, 2019 SRW (0.10 hrs) “Receipt/review and note 240 day order”;
                  CJW (0.10 hrs) “Receive, review and note 240 day order”; and
              •   August 22, 2019 SNP (0.10 hrs) “Receive, review and note stipulation for
                  award”; CJW (0.10 hrs) “Receive, review and note filed stipulation.”
3   The Fee schedules can be accessed at: http://www.uscfc.uscourts.gov/node/2914
                                                   3
(ECF No. 33-2 at 4, 5, 9 and 11). 4

                  C. Administrative Time

       It also appears that a number of entries iin the billing records that are for tasks
considered clerical or administrative. In the Vaccine Program, secretarial work “should be
considered as normal overhead office costs included within the attorney’s 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 include:
           • March 20, 2018 (0.20 hrs) “Open and set up file; update client tracking
               spreadsheet”
           • March 24, 2018 (0.20 hrs) “Send new letter regarding representation”
           • May 8, 2018 (0.20 hrs) “Receipt/review and note documents from client;
               scan and save to file”
           • June 4, 2018 (0.20 hrs) ‘Receipt of invoice from Tennessee Orthopedics;
               review invoice charges per Tennessee stature; update client provider chart;
               copy of invoice to Sherry Fearon for payment”

(ECF No. 33-2 at 1 -3). 5

       It is for both of the above reasons that I reduce the requested amount of attorney’s
fees in the amount of 10 percent, or a total reduction of $1,857.41.

                                         ATTORNEY COSTS

       Petitioner requests $1,990.39 in overall costs. (ECF No. 33 at 1). This amount is
comprised of obtaining medical records, travel costs, and the Court’s filing fee. I have
reviewed all the requested costs and find them to be reasonable with an exception
regarding costs associated with travel by attorney Chris Webb. The attorneys at Black
McLaren, Mr. Webb in particular, have previously had costs reduced for the reasons listed
below.




4   These are merely examples and not an exhaustive list.
5
    These are merely examples and not an exhaustive list.
                                                     4
      Mr. Webb purchased a first-class ticket for what is listed as a “triangle trip” to visit
two separate clients in two separate states and to interview a potential new associate. 6
The total cost of the airline ticket was $1,230.10. However, Mr. Webb only seeks
reimbursement of one half of the ticket cost in this case ($615.05) with the other half
requested in a case still pending in the Program.

       Mr. Webb claims that purchasing a first-class ticket to split among two cases was
less expensive than purchasing a coach ticket for the same trip. (ECF No. 33-2 at 31).
Airfare is subject to a wide-range of price differentials including, but not limited to, the
date the flight is booked and the date of travel. But 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. See e.g., Wright v. Sec’y of Health &
Human Servs., No. 12-0423V, Slip Op. at 144 (Fed. Cl. Spec. Mstr., December 10, 2018);
Digerolamo v. Sec’y of Health & Human Servs., No. 16-0920V, 2019 WL 4305792 (Fed.
Cl. Spec. Mstr. June 28, 2019).

         Under most circumstances I would compensate some portion of counsel’s airfare.
However, I note that Mr. Webb has been cautioned in past cases about the purchase of
first-class airfare and that it is not compensable in the Vaccine Program. Therefore, I shall
reduce the request for costs in the amount of $615.05, the full amount of the requested
cost of airfare. In the future, I am willing to compensate trips split among multiple cases,
so long as counsel abides by the established rules of the Vaccine Program.

       Additionally, during this client visit Mr. Webb utilized Uber Black, a black car
service, for his transportation to and from the airport. Mr. Webb incurred a total bill of
$110.28, and is requesting reimbursement of half of the invoice, for a total amount of
$55.14. (ECF No. 33-2 at 14). Just as with the airline ticket, Mr. Webb and the attorneys
of Black McLaren have had their requests for costs reduced for using Uber Black services.
Wright, slip op. at *6 (make sure cite is right, slip op. shouldn’t have *); Digerolamo, 2019
WL 4305792, at *7. I shall reduce the request for costs by $55.14, the total requested in
this case for Uber Black services.

                                              CONCLUSION

      The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42
U.S.C. §300aa-§ 15(e). Accordingly, I hereby GRANT IN PART Petitioner’s Motion for

6   The invoices show Mr. Webb did not bill time to the program to meet with the potential new associate.

                                                      5
attorney’s fees and costs. I award a total of $18,036.89 (representing $16,716.69 in fees
and $1,320.20 in costs) as a lump sum in the form of a check jointly payable to Petitioner
and Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix
B to the Rules of the Court), the Clerk shall enter judgment in accordance with this
decision. 7

IT IS SO ORDERED.

                                                      s/Brian H. Corcoran
                                                      Brian H. Corcoran
                                                      Chief Special Master




7 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
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