# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 19

- 0692 V (not to be published)

CAROLYN CLARK

,

Petitioner,

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent. Chief Special Master Corcoran

Filed: December 15, 2021

Special Processing Unit (SPU); Attorney’s Fees and Costs ; First

Class Airfare

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

, for P etitioner.

Alexis B. Babcock , U.S. Department of Justice, Washington, DC, for R espondent.

DECISION ON ATTORNEY ’ S FEES AND COSTS 1

On May 10, 2019

, Carolyn Clark 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 left shoulder injury related to

vaccine administration as a result of an in fluenza vaccination received on November

7, 2016

. ( Petition at 1) . On May 26, 2021, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. ( ECF No. 35).

Petitioner has now filed a motion for attorney’s fees and costs, dated October 20,

2021 (ECF No. 41 ) , requesting a total award of $ 40,105.31 (representing $ 36,910.50 in

1 Because this unpublished D ecision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 D ecision 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 fees and $ 3,194.81 in costs). In accordance with General Order No. 9, Petitioner filed a
signed statement indicating that she not incurred no out

- of

- pocket expenses. (ECF No.

41

- 3 )

. Respondent reacted to the M otion on October 21, 2021, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met

in this case

, but deferring resolution of the amount to be awarded to my discretion

. (ECF

No. 42 ). Petitioner did not file a reply thereafter.

I have reviewed the billing records submitted with P etitioner’s request s and find a
reduction in the amount of fees to be awarded appropriate for the reason listed below.

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

servic e, 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.

S ec’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] reas onable 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 & H uman 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 p etitioner “bears the burden of establishing the hours expended , the rates
charged, and the expenses incu rred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sough t] at the time of the submission.” Wasson, 24 Cl. Ct. 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 ethica lly is obligated to exclude such hours from his fee submission.” Hensley

, 461 U.S. at 434.3 ATTORNEY FEES

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. 4 1

- 2 at

2 0 ). The rates requested for Mr. Webb have been previously reviewed in other cases and
deemed appropriate and shall be awarded in this matter as well. And the time billed to

the matter was reasonably incurred, and shall not therefore be reduced.

Petitioner also requests rates ranging from $153.00 per hour to $16 1 .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 202 1 , and the amount of work performed by
paralegals was reasonable.

ATTORNEY COSTS

Petitioner seeks $ 3,194.81 in attorney’s costs that include travel, medical records,
postage and filing. (ECF No. 41

- 2 at 21 ). Upon my review of the receipts submitted for

travel, however, it appears the amount of costs requested for reimbursement of airfare
charges are somewhat excessive

. All travel was billed by Mr. Webb, who has had previous
requests for airfare costs reduced

, yet continues to bill for travel that is not reimbursable
by the Program

. 3

Specifically, t he submitted cost substantiation indicates that Mr. Webb booked

a first

- class flight from Memphis, TN to Columbus, OH on June 12, 2019

, to meet with

the Petitioner, at a cost of $ 958.00 . ( ECF No. 4 1

- 2 at 35 ) . Petitioner only requests

reimbursement for the (slightly) lower sum of $ 908.00

, presumably based on the idea

that this was the coach ticket cost. ( Id. at 45

- 48 ). Independent research, however, establishes that a coach ticket for the same route traveled, purchased around the same

3 Black McLaren has had requests for attorney’s costs previous ly 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, 2018 WL 7051676 (Fed. Cl. Spec. Mstr. Dec. 10, 2018); Digerolamo v. Sec’y of

Health & Hum an Serv., No. 16

- 0920V, 2019 WL 4305792 (Fed. Cl. Spec. Mstr . Jun. 28, 2019); Spivey v. Sec’y of Health & Human Serv., No. 18

- 0959V, 2019 WL 758015 1 (Fed. Cl. Spec. Mstr. Dec. 12, 2019); and Lepper v. Sec’y of Health & Human Servs., No. 18

- 0984V, 2019 WL 7580152 (Fed. Cl. Spec. Mstr. Dec. 12, 2019).4 time, would likely cost no more than $ 387 ( $ 620 round trip )

– a fraction of what Petitioner

seeks.

Counsel in this case has been repeatedly warned not to requ est first class rates

, but continues to do so. See, Wright v. Sec’y of Health & Human Servs., No. 12

- 0423V,

2018 WL 7051676 (Fed. Cl. Spec. Mstr. Dec. 10, 2018); Digerolamo v. Sec’y of Health

& Human Serv., No. 16

- 0920V, 2019 WL 4305792 (Fed. Cl. Spec. Mstr. Jun. 28,
2019); Spivey v. Sec’y of Health & Human S erv., No. 18

- 0959V, 2019 WL 7580151 (Fed. Cl. Spec. Mstr. Dec. 12, 2019); and Lepper v. Sec’y of Health & Hum an Servs.,

No. 18

- 0984V, 2019 WL 7580152 (Fed. Cl. Spec. Mstr. Dec. 12, 2019). Most re cently,

counsel was warned that if requesting first class airfare continued, the request will be
denied in its entirety. See Robinson v. Sec’y of Health & Human Servs., No. 18

- 1134V,
2020 WL 4198759 (Fed. Cl. Spec. Mstr. May 8, 2020).

As counsel has not complied with prior warnings regarding first class airfare, I
hereby **deny** the requested $ 908.00 for airfare.

CONCLUSION

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

. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney ’ s fees and costs. I

award a total of $ 39,197.31 (representing $ 36,910.50 in fees and $ 2,286.81 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 dec ision. 4

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran Chief Special Master

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