The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0888V
Filed: July 21, 2017
**************************** UNPUBLISHED
NANCY DAY, *
*
Petitioner, * Chief Special Master Dorsey
v. *
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Law Clerk Reduction.
*
Respondent. *
*
****************************
Michael G. McLaren, Black, McLaren, et al., Memphis, TN, for petitioner.
Glenn A. MacLeod, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1
Dorsey, Chief Special Master:
On May 11, 2017, Nancy Day (“petitioner”) filed a motion for attorneys’ fees and
costs, requesting $22,777.00 in attorneys’ fees for her counsel, Michael G. MacLaren of
Black McLaren Jones Ryland & Griffee (“the McLaren Firm”), and $2,663.76 in
attorneys’ costs, for a total of $25,440.76. Petitioner’s Application (“Pet. App.”) dated
May 11, 2017 (ECF No. 34) at 1. Respondent did not file a response. For the reasons
discussed below, the undersigned GRANTS petitioner’s motion for attorneys’ fees and
costs and award a total of $25,305.66.
I. Introduction
On July 26, 2016, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the “Vaccine
1 Because this decision contains a reasoned explanation for the action in this case, the undersigned
intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Act” or “Program”). Petitioner alleges that she suffered a left shoulder injury as a result
of an influenza (“flu”) vaccination she received on October 1, 2015. Pet. at 1. The case
was assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
On November 17, 2016, respondent filed a Rule 4(c) Report in which he
conceded that petitioner was entitled to compensation. Rule 4(c) Rep. at 1. The
undersigned issued a Ruling on Entitlement on November 18, 2016, after which the
case entered the damages phase. On March 27, 2017, the undersigned issued a
decision based on respondent’s proffer awarding petitioner $130,000.00. Decision
dated March 27, 2017 (ECF No. 29).
II. Reasonable Attorneys’ Fees
Under the Vaccine Act, the special master shall award reasonable attorneys’ fees
and costs for any petition that results in an award of compensation. 42 U.S.C. §300aa-
15(e)(1). In this case, petitioner was awarded compensation and therefore is entitled to
an award of reasonable attorneys’ fees and costs.
a. Reasonable Hourly Rate
On November 4, 2016, the undersigned issued a reasoned decision in Henry v.
Sec’y of Health & Human Servs., 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr.
Nov. 4, 2016), finding the McLaren Firm entitled to forum rates and setting hourly rates
for the firm consistent with those set forth in McCulloch v. Sec’y of Health & Human
Servs., No. 09-093V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Mr. McLaren requests $425.00 per hour for work performed in 2016 and $440.00
per hour for work performed in 2017. These rates have been previously awarded to Mr.
McLaren and fall within the ranges included in the fee schedule 3 for attorneys’ with his
level of experience. Henry, 2016 WL 7189925; Brown v. Sec’y of Health & Human
Servs., 13-766V, 2016 WL 7666536 (Fed. Cl. Spec. Mstr. Dec. 15, 2016). Therefore,
the undersigned awards Mr. McLaren these requested rates.
Mr. Chris Webb, an associate at the McLaren Firm, also billed time in this case at
a rate of $305.00 per hour in 2016 and $315.00 per hour in 2017. These rates are in
accordance with the McCulloch fee schedules and have been previously awarded to Mr.
Webb, thus the undersigned awards them in full.
Paralegal time was billed at a rate of $130.00 per hour for work performed in
2015, which is in accordance with the 2015-2016 fee schedule. The undersigned
awards this requested rate in full.
3 The 2015-2016 Fee Schedule can be accessed at:
http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-Rate-Fee-Schedule2015-2016.pdf. The
2017 Fee Schedule can be accessed at: http://www.cofc.uscourts.gov/sites/default/files/Attorneys-Forum-
Rate-Fee-Schedule-2017.pdf. The hourly rates contained within are from the decision McCulloch v. Sec’y
of Health & Human Servs., No. 09-093V, 2015 WL 5634323 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).
Law Clerks also billed time in the case, at a rate of $150.00 per hour in 2016 and
$155.00 per hour in 2017. According to the 2016 and 2017 fee schedules, 4 law clerks
and paralegals are entitled to $125.00 - $145.00 per hour in 2016 and $128.00 to
$148.00 per hour in 2017. Therefore, the undersigned adjusts the hourly rates
requested by the law clerks. The undersigned will compensate the law clerks at
$145.00 per hour for work performed in 2016 and $148.00 per hour for work performed
in 2017, thereby reducing petitioner’s application by $135.10.
The undersigned has reviewed the billing records submitted with petitioner’s
request. In the undersigned’s experience, the request appears reasonable, and the
undersigned will not further reduce the requested hours.
III. Reasonable Costs
Like attorneys’ fees, a request for reimbursement of costs must be reasonable.
Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992).
Petitioner’s counsel requests $2,663.76 in attorneys’ costs for expenses incurred by the
firm. Pet. App. at 1. These costs include payments for copies of medical records, the
filing fee, travel costs, and postage. Pet. App., Ex. 2 at 17. The undersigned finds
these costs reasonable and awards them in full.
IV. Conclusion
Attorneys’ Fees
Requested: $22,777.00
Law Clerk rate reduction: ($135.10)
Awarded: $22,641.90
Attorneys’ Costs
Requested: $2,663.76
Reductions: ($0.00)
Awarded: $2,663.76
Total Fees and Costs
Total: $25,305.66
Accordingly, the undersigned awards:
A lump sum in the amount of $25,305.66, representing reimbursement for
petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner
and her attorney, Michael G. McLaren.
4
See infra, note 3.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the
Clerk of the Court SHALL ENTER JUDGMENT herewith. 5
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.