Rublaitus v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0346V
(not to be published)
CYNTHIA RUBLAITUS,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 20, 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.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On March 6, 2019, Cynthia Rublaitus 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 caused by an October 2, 2017 influenza vaccine. (Petition at 1). The matter
was assigned to the SPU, and on February 20, 2020, a decision was issued awarding
compensation to Petitioner based on the parties’ stipulation. (ECF No. 26).
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Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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.
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On April 21, 2020, Petitioner filed a motion for attorney’s fees and costs. (ECF No.
32, Petitioner’s Application for Fees and Expenses (“Fees App.”)). A decision was
originally issued on July 20, 2020, wherein I found it necessary to reduce the amount
requested in both fees and costs. Petitioner moved for reconsideration of the decision on
attorneys’ fees and costs that same day. (Motion for Reconsideration ECF No. 36
(“Motion”)). I granted the motion and withdrew the original decision on August 14, 2020.
(ECF No. 37). I now hereby issue a revised fees award in light of Petitioner’s arguments
on reconsideration.
I. Relevant Procedural History
Petitioner’s original motion for attorney’s fees and costs requested a total award of
$27,942.54 (representing $24,770.60 in fees and $3,171.94 in costs). (Fees App. at 1).
In accordance with General Order No. 9, Petitioner also offered a signed statement
indicating that she incurred no out-of-pocket expenses. (ECF No. 63-3). That same day,
Respondent reacted to the motion, deferring to my discretion in determining the amount
to be awarded. (ECF No. 33). Petitioner did not file a reply.
Before I had ruled on the Fees Request, Petitioner filed a status report on July 9,
2020, reducing the requested amount. (ECF No. 34, Status Report Updating Court on
Claimed Fees/Expenses (“Status Report”)). Petitioner stated that, in light of recent SPU
decisions involving current counsel, she had attempted to cut duplicative and
administrative billing and also to adhere to previous travel and expense billing guidance.
(Status Report at 1). Petitioner further modified her request for fees and expenses to
reflect a 50% reduction in “airfare related to a non-first class, but expensive, coach
itinerary,” (Id.) and also voluntarily reduced the amount requested for car service from the
airport (since other SPU decisions have criticized counsel for using a luxury-level service).
The new amount requested totaled $27,367.54 for fees and costs – and approximately
$600.00 reduction. (Status Report at 2).
Despite the foregoing, I issued a fees decision on July 20, 2020, wherein I found it
necessary to reduce the amount requested in fees and costs. Regarding the costs, I found
that two items were excessive and thus not reimbursed at all: first class airfare and costs
associated with the car service. These items were cut based upon my determination that
counsel had ignored prior warnings not to overcharge in fees and costs requests for these
cost components.
Petitioner filed a Motion to Reconsider on July 20, 2020, asking me to revise my
fees decision, and instead to award the costs of the airfare and the luxury taxi service.
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(Motion at 4). Petitioner argued that my decision made two mistakes: it denied in the
entirety the cost of airfare and the cost of a car service. Motion at 3. Petitioner argued this
was in error because counsel did not purchase first-class airfare, but merely an expensive
coach ticket. Further, Petitioner modified her request for expenses to reflect a 50%
reduction in both the airfare and the car service. (Motion at 1 (stating “Petitioner filed a
Status Report supplementing and updating the nature of her fees and costs requests on
July 9, 2020.”)).
I granted Petitioner’s motion on August 14, 2020, finding that the interests of justice
support reconsidering my fee decision, and I withdrew that decision. (ECF No. 37).
II. ANALYSIS
A. Relevant Legal Standards
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., 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.” 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
ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S.,
at 434.
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B. ATTORNEY FEES
1. 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 and are therefore adopted herein.
2. Billing for Duplicative and/or 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 attorney’s fees awards 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 specifically 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 (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, 2019 WL
4305792 (Fed. Cl. Spec. Mstr. June 28, 2019).
Petitioner’s counsel stated that he originally reviewed the time entries in detail in
an attempt to cut duplicative and administrative billing. (Status Report at 1). Despite those
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efforts, I find several instances in which the requested fees are excessive and/or
duplicative. For example, there were 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 and note notice of
assignment to Chief Special Master Dorsey”; CJW (0.10 hrs) “Receive,
review and note notice of assignment to Special Master”;
• July 8, 2018 (0.20 hrs) CJW “Receive, review and note minute entry filed by
court”; July 9, 2019 (0.10) SNP “Receive, review and note minute entry from
court and scheduling order”; and
• January 8, 2020 CJW (0.10 hrs) “Receive, review, note scheduling order;
November 20, 2018 MGM (0.10 hrs) “Receive, note contents, review and
analyze scheduling order.”
(ECF No. 32-2 at 38, 40 and 43). 3 Accordingly, such duplicative billing is unnecessary
and provides grounds for reducing the fees awarded.
A number of entries in the billing records also 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., 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:
• October 5, 2018 (0.20 hrs) “Set up new file; calendar statute of limitations
date; update spreadsheet”;
• November 2, 2018 (0.20 hrs) “Oversee records collection”;
• November 19, 2018 (0.10 hrs) “Receipt and review of additional copy of
invoice from Orthopedic Associates”; and
3
These are merely examples and not an exhaustive list.
5
• November 20, 2018 (0.10 hrs) “Submit invoice for payment for medical
records from Washington University Physicians – Urology”;
(ECF No. 32-2 at 32 – 34).
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
$2,477.06.
C. ATTORNEY COSTS
Petitioner seeks $3,171.94 in attorney’s costs that include expenses associated
with travel, medical records, postage, and filing. (Fees App. at 1). 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. 4
1. Airfare Costs
The submitted cost substantiation indicates that Mr. Webb booked a flight from
Memphis, TN to St. Louis, MO from March 18 – 20, 2018, for his meeting with Petitioner,
at a cost of $1,150.00. (ECF No. 32-2 at 14). Counsel attempts to justify this expense by
stating he researched available fares “almost 2 weeks out and the best available coach
fare was $1,150.00.” (Fees App. At 6). Petitioner further states that he was unable to
locate a cheaper coach or first-class fare at alternate times, but also that the dates
selected were the ones that worked best for Petitioner and counsel, “thus the extra cost
was necessary.” (Id.).
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, Digerolamo v. Se’y of Health & Human Servs.,
No. 16-0920V, 2019 WL 4305792 (Fed. Cl. Spec. Mstr. June 28, 2019) (reducing costs for first-class airfare,
expensive meals, luxury hotel accommodations, and luxury car services); Hiatt v. Sec’y of Health & Human
Servs., No. 16-1467V, 2019 WL 4305795 (Fed. Cl. Spec. Mstr. June 28, 2019) (reducing costs for first class
airfare and luxury car services); Spivey v. Sec’y of Health & Human Servs., No. 18-0959V, 2019 WL
7580151 (Fed. Cl. Spec. Mstr. Dec. 12, 2019) (reducing costs for first class airfare and luxury car services);
Changkiendee v. Sec’y of Health & Human Servs., No. 17-1612V, 2020 WL 4198746 (Fed. Cl. Spec. Mstr.
May 8, 2020) (reducing compensation for first-class airfare and luxury car services) and Lepper v. Sec’y of
Health & Human Servs., No. 18-0984V, 2019 WL 7580152 at *3 (Fed. Cl. Spec. Mstr. Dec. 12, 2019)
(denying compensation for first-class airfare).
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Petitioner bears the burden in establish the reasonableness of costs at all times.
Here, there is no evidence that the extra cost was necessary other than counsel’s
argument that those dates were simply more convenient. Accordingly, Petitioner did not
adequately justify this cost.
Counsel in this case has been repeatedly warned not to seek to bill the Vaccine
Program for expensive travel - but continues to do so. See, e.g., Spivey v. Sec’y of Health
& Human Servs., No. 18-0959V, 2019 WL 7580151 (Fed. Cl. Spec. Mstr. Dec. 12, 2019)
(denying compensation for first-class airfare); Lepper v. Sec’y of Health & Human Servs.,
No. 18-0984V, 2019 WL 7580152 at *3 (Fed. Cl. Spec. Mstr. Dec. 12, 2019) (denying
compensation for first-class airfare and noting that Mr. Webb has specifically been
cautioned against such expenses); Digerolamo v. Sec’y of Health & Human Servs., No.
16-0920V, 2019 WL 4305792 at *4 (Fed. Cl. Spec. Mstr. Jun. 28, 2019) (denying
compensation for first-class airfare and “extravagant meals for himself”). Counsel has
also been previously informed that if he continues to seek reimbursement for expensive
travel costs, 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). It was for
this reason that my initial fees decision denied any recovery for airfare in this case.
Counsel later attempted to modify this request by proposing a 50 percent reduction
of the cost sought for that airfare in a status report nearly three months after filing the
application for fees and costs. (Status Report at 2). I recognize counsel’s attempt to
address a consistent concern, expensive travel costs, but a status report is not the correct
means for revising a prior fees request. In the future, Petitioner must submit revised
motions for costs, and continue to substantiate any costs they seek at the time they are
requested – and not after I have made a decision (since special masters are empowered
to make reductions in fees and costs sua sponte). Attorney argument regarding the
reasonableness of expensive airfare is inadequate and, without more, will result in
repeated denials of requests for costs.
Nevertheless, I am cognizant of the fact that counsel in this case routinely provides
good service to its Vaccine Program clients, and while my determination to withhold this
element of costs was based on reasonable considerations, I do not seek to penalize
counsel in this matter simply for the sake of doing so. Accordingly, I find that good cause
exists for reconsideration of my prior determination, and that it is in the interests of justice
to revise my original fees decision.
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To that end, I GRANT the request for 50 percent reimbursement of the airfare cost,
as proposed in the Status Report. This reduces the reimbursable costs by $575.00.
2. Car Service Costs
Mr. Webb utilized the car service Uber Black as transportation from the airport to
his hotel, resulting in a charge of $77.35. (ECF No. 32-2 at 21-23). While car
transportation costs are generally compensable, Uber Black is a luxury version of Uber’s
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, 2018 WL 7051676 at * 6; Digerolamo, 2019 WL 4305792, at *5; Spivey, 2019 WL
7580151 at *3; and Lepper, 2019 WL 7580152, at *3. Mr. Webb provide a note on the
invoice claiming this service was the only option “without an extensive wait.” (ECF No.
32-2 at 21).
Mr. Webb and the attorneys of Black McLaren have previously been made aware
that luxury car service costs are not reimbursable by the Vaccine Program. Further, using
a more expensive service to avoid a wait is not adequate justification. Counsel must
therefore avoid including this cost in future fees requests – and should expect going
forward that it will be denied in its entirety if my admonition is disregarded.
Nevertheless, and for the same reason I have opted to accept Petitioner’s
proposed resolution of the disputed airfare, I will also embrace Petitioner’s request that I
compensate this cost item at 50 percent of its total. I also recognize that counsel made
this reduction in the Combined expenses and fee bill accompanying her fee application
(ECF No. 32-2 at 48 (noting the $77.35 Uber charged was billed at 50%). Therefore, no
further reduction is needed.
III. CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I GRANT IN PART Petitioner’s Motion for attorney’s fees and costs. I
award a total of $24,890.48 (representing $22,293.54 in fees, and $2,596.94 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
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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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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