Porter v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-130V
(not to be published)
MAMIE PORTER,
Chief Special Master Corcoran
Petitioner,
v. Filed: August 25, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Michael G. McLaren, Black McLaren et al., P.C., Memphis, TN, for Petitioner.
Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 25, 2019, Mamie Porter 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 influenza vaccination administered on September
18, 2017. (Petition at 1). On April 7, 2020, a decision was issued 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1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 May 21, 2020
(ECF No. 34-3), requesting a total award of $31,631.60 (representing $29,452.20 in fees
and $2,179.40 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. 34-
3). Respondent reacted to the motion on June 16, 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. 35). Petitioner did
not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests 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
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.
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. 34 at
11). 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. Hours Billed
I have reviewed the billing records submitted and find no reason to reduce the time
billed. (ECF No. 34-2 at 44-62).
ATTORNEY COSTS
Petitioner seeks $2,179.90 in attorney’s costs that include expenses associated
with travel, medical records, postage, and filing. (ECF No. 34-2 at 63). Upon my review
of the receipts submitted for travel, I find problems regarding the amount of costs
requested for reimbursement, specifically regarding the costs for 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. 3
3 Black McLaren has had requests for attorney’s costs previously reduced for luxury costs in multiple cases,
including but not limited to; Wright v. Sec’y of Health & Human Servs., No. 12-0423V, 2018 WL 7017749(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. June 28, 2019); Spivey v. Sec’y of Health & Human Serv., No. 18-0959V,
2019 WL 7580151 (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).
3
A. Car Service Costs
Mr. Webb utilized the car service Uber Select as transportation twice during his
visit with Petitioner, which resulted in total Uber Select charges of $88.98. (ECF No. 34-
2 at 13-15 and 25-27). While car transportation costs are generally compensable, Uber
Select is “a luxurious step above UberX”4 and 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 7017749, at *4-5; Digerolamo, 2019 WL
4305792, at *3-5; Spivey, 2019 WL 7580151, at *3; and Lepper, 2019 WL 7580152, 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.
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 Select car services costs, reducing the amount of costs to be awarded by
$88.98.
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 $31,542.62 (representing $29,452.20 in fees, and $2,090.42 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
4This description is taken from the website estimatefare.com. See https://estimatefare.com/what-is-uber-
select/
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.
4