In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-1370V
                                        (not to be published)


    LAUREN RETTIG,
                                                                Chief Special Master Corcoran
                         Petitioner,
    v.                                                          Filed: July 7, 2020


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


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

Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for Respondent.

                       DECISION ON ATTORNEY’S FEES AND COSTS 1

        On September 28, 2017, Lauren Rettig 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 a shoulder injury related to vaccine
administration as a result of an influenza vaccine administered on October 2, 2014.
(Petition at 1). On February 25, 2020, a decision was issued awarding compensation to
Petitioner based on the parties’ stipulation. (ECF No. 58).




1  Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 May 1, 2020
(ECF No. 63), requesting a total award of $41,108.03 (representing $38,209.00 in fees
and $2,899.03 in costs). In accordance with General Order No. 9, Petitioner has offered
a signed statement indicating that she incurred no out-of-pocket expenses. (ECF No. 63-
3). Respondent reacted to the motion on May 11, 2020, indicating that he is satisfied that
the statutory requirements for an award of fees and costs are met in this case, and defers
to my discretion in determining the amount to be awarded. (ECF No. 64). Petitioner did
not file a reply thereafter.

      For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion,
awarding final attorney’s fees and costs in the amount of $36,349.95.

                                       ANALYSIS

        The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
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., 

, 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., 

, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 

, 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.”

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., 

, 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., 

, 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.” 

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.” 

.

                                            2
                                   ATTORNEY FEES

             A. Hourly Rates

        I have reviewed the rates requested for the work of the various attorneys and legal
staff involved in this case. The billing invoices indicate that most of the time billed was
performed by Christopher Webb, plus some law clerks and paralegals. (ECF No. 63-2 at
55). All rates requested for time billed to the matter in 2018 or 2019 are consistent with
what has been allowed for Mr. Webb in prior cases, and are therefore awarded here as
well. In addition, for time billed in 2020, Mr. Webb is requesting an increased rate of
$351.00 per hour. Based on my experience and applying the rate schedules utilized at
OSM, I find the requested increase is reasonable and award it herein.

       Petitioner also requests rates ranging from $153.00 per hour to $160.00 per hour
for work performed by paralegals and law clerks. (Id.) The rates requested for all parties
are consistent with what has been previously awarded for their work in the Vaccine
Program for time billed through 2020.

             B. Duplicative Billing and Billing for Administrative Tasks

      Although the rates requested herein are subject to no change (or even increases
in some cases), the time billed to this case is another matter.

        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, 

(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, 

(Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 

(2016).
Special masters have specifically noted the inefficiency that results when cases are
staffed by multiple individuals and have reduced fees accordingly. See Sabella, 

. at 209. The attorneys at Black McLaren (Mr. Webb’s law firm) have in particular had
their requests for attorney’s fees reduced for excessive and duplicate billing. See, e.g.,
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, 

(Fed. Cl. Spec. Mstr. June 28, 2019).




                                            3
       In reviewing the invoices submitted, I found several instances in which multiple
attorneys and staff members reviewed the same documents and filings. Examples of
these include:

              •   October 3, 2017 SRW (0.10 hrs) “Receive/Review notice of electronic case
                  designation and acknowledgement of receipt of filed petitioner as of
                  09/28/2017; CJW (0.10 hrs) “Receive, review and note ECF designator”;
                  (0.10 hrs) “Receive, review and note petitioner filing”;

              •   October 30, 2017 (0.20 hrs) CJW “Receive, review and note notice of new
                  staff attorney”; MGM (0.10 hrs) “Go over change in attorney status”; October
                  31, 2017 SRM (0.10 hrs) “Receive/review and note assignment of new staff
                  attorney; save to file”;

              •   May 29, 2018 (0.10 hrs) SRW “Receive/Review and note 240 day order”;
                  May 30, 2018 (0.10 hrs) CJW “Receive, review and note 240 day order”;
                  and

              •   November 19, 2018 CJW (0.20 hrs) “Receive, review, note scheduling
                  order; November 20, 2018 SRW (0.10 hrs) “Receive/review and note
                  scheduling order entered yesterday; update calendar.”

(ECF No. 63-2 at 35, 36, 41 and 45 ). 3

       Accordingly, such duplicative and unnecessary billing provides grounds for
adjusting downward the fees to be awarded.

         It also appears that a number of entries in the billing records reflect work performed
on 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., 

, 387 (1989); Dingle v. Sec’y of Health & Human
Servs., No. 08-579V, 

, 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, 

, at *5 (citing 

).

          Examples of these include:



3   These are merely examples and not an exhaustive list.
                                                     4
            •   May 15, 2017 (0.20 hrs) “Set up new file; update client spreadsheet;
                calendar statute of limitations date;

            •   June 6, 2017 (0.40 hrs) “Receipt of invoice and medical records from the
                Movement Science Center; Work on scanning and saving documents to
                subfile folders; review invoice charges per state stature; update provider
                chart; copy of records sent to Chris Webb for review”;

            •   August 16, 2017 (0.40 hrs) Receipt of immunization records from student
                health; Work on scanning and saving documents to subfile folders; review
                invoice charges per state stature; update provider chart; copy of invoice to
                Sherry Fearon for payment; copy of records sent to Chris Webb for review”;

            •   August 31, 2017 (0.20 hrs) “Work on sending payment to online portal;
                update provider chart”; and

            •   October 11, 2017 (0.10 hrs) “Work on scanning and saving client affidavit;
                correspondence to Samantha Ward enclosing same.”

(ECF No. 63-2 at 28, 29, 32 and 25).

       Based upon the above, and pursuant to my authority to make across-the-board
reductions in fees to be awarded when appropriate, I reduce the requested amount of
attorney’s fees to be awarded in the amount of ten percent, for a total reduction of
$3,820.90.

                                        ATTORNEY COSTS

        Petitioner seeks $2,899.03 in attorney’s costs that include expenses associated
with travel, medical records, postage, and filing. (ECF No. 63-2 at 55-56). Upon my review
of the receipts submitted for travel, I find multiple problems regarding the amount of costs
requested for reimbursement specifically regarding the costs for airfare and a car service.
All travel was billed by Mr. Webb, who has had previous requests for costs reduced for
the same reasons, yet continues to bill for travel that is not reimbursable by the Program. 4

4 Black McLaren has had requests for attorney’s costs previously reduced for excessive airfare and other

luxury costs in multiple cases, including but not limited to; Wright v. Sec’y of Health & Human Servs., No.
12-0423V, 

(Fed. Cl. Spec. Mstr. Dec. 10, 2018); Digerolamo v. Sec’y of Health & Human
Serv., No. 16-0920V, 

(Fed. Cl. Spec. Mstr. Jun. 28, 2019); Spivey v. Sec’y of Health &
Human Serv., No. 18-0959V, 

(Fed. Cl. Spec. Mstr. Dec. 12, 2019); and Lepper v. Sec’y
of Health & Human Servs., No. 18-0984V, 

(Fed. Cl. Spec. Mstr. Dec. 12, 2019).
                                                    5
              A.     Airfare Costs

         The submitted cost substantiation indicates that Mr. Webb booked a first-class
flight from Memphis, TN to New Orleans, LA from October 15 - 16, 2017, for his meeting
with Petitioner, for a cost of $873.10. (ECF No. 63-2 at 17). Petitioner claims that the first-
class ticket was “cheaper than coach for desired times . . . [and] switched later for free”).
(Id).

      Counsel in this case has been repeatedly warned not to seek to bill the Vaccine
Program for first class travel - but continues to do so. See, e.g., Spivey v. Sec’y of Health
& Human Servs., No. 18-0959V, 

(Fed. Cl. Spec. Mstr. Dec. 12, 2019);
Lepper v. Sec’y of Health & Human Servs., No. 18-0984V, 

(Fed. Cl.
Spec. Mstr. Dec. 12, 2019); Digerolamo v. Sec’y of Health & Human Servs., No. 16-
0920V, 

(Fed. Cl. Spec. Mstr. Jun. 28, 2019); Wright v. Sec’y of Health
& Human Servs., No. 12-0423V, 

(Fed. Cl. Spec. Mstr. Dec. 10, 2018).
Counsel has also been previously informed that if first-class travel costs continued to be
submitted for reimbursement, they would be denied in their entirety. See Robinson v.
Sec’y of Health & Human Servs., No. 18-1134V, Slip. Op. 46 (Fed. Cl. Spec. Mstr. May
8, 2020).

      I accordingly DENY the request for reimbursement of the airfare in its entirety. This
reduces the reimbursable costs by $873.10.

              B.     Car Service Costs

        Mr. Webb utilized the car service Uber X as transportation from the airport to his
hotel and back for the return flight. This resulted in charges of $64.08. (ECF No. 63-2 at
12 - 14). While car transportation costs are generally compensable, Uber X is a luxury
service that exceeds what is reasonable under the Vaccine Program. The attorneys of
Black McLaren have previously had costs reduced for using these services. See, e.g.,
Wright, 

at * 6; Digerolamo, 

, at *7; Spivey, 

; and Lepper, 

, at *3. Mr. Webb did not provide any reasoning
as to why he used the luxury service for this portion of travel on his trip rather than taking
a traditional Uber or a taxi service.




                                              6
       As Mr. Webb and the attorneys of Black McLaren have been made aware that
luxury car services are not reimbursable by the Vaccine Program, I deny the request for
the Uber X car services costs, reducing the amount of costs to be awarded by $64.08.

                                         CONCLUSION

       The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT IN PART Petitioner’s Motion for attorney’s fees and
costs. I award a total of $36,349.95 (representing $34,388.10 in fees, and $1,961.85 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. 5

IT IS SO ORDERED.

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




5 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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