In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1964V
(not to be published)
ALEXANDRA MORROW,
Chief Special Master Corcoran
Petitioner,
v. Filed: December 9, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Michael Avrim Firestone, Marvin Firestone, MD, JD and Associates, San Mateo, CA, for
Petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On December 18, 2017, Alexandra Morrow 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 January 24, 2017.
(Petition at 1-4). On June 29, 2021, a decision was issued awarding compensation to
Petitioner based on the parties’ stipulation. (ECF No. 69).
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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 ref erences 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 September
2, 2021 (ECF No. 73), requesting an award of $7,580.27 in fees and costs for attorney
Michael A. Firestone. In addition, Petitioner requests the amount of $41,038.50 in fees
and costs incurred by prior counsel, Martin Martinez. (Id. at 2). In accordance with General
Order No. 9, Petitioner filed a signed statement indicating that she incurred no out-of-
pocket expenses. (Id. at 73). Respondent reacted to the motion on September 15, 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. 74). 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 reasons 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. 482, 484 (1991). The Petitioner “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
2
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
ATTORNEY FEES
A. Michael A. Firestone, Esq.
Petitioner requests the following rates for attorney Michael A. Firestone: $311.12
for time billed in 2020, and $365 for time billed in 2021. (ECF No. 73 at 10). In addition,
Petitioner requests compensation for associate attorney Megan Shiner at the rate of $200
for time billed in 2021. (Id.).
The rates for Mr. Firestone are reasonable, and consistent with what have
previously been awarded for work he has performed for other petitioners, and are
therefore awarded herein. The rate for Ms. Shiner does, however, require an adjustment.
This is the first case requesting a rate for Ms. Shiner, but an affidavit in support of her
rates was not included in Petitioner’s motion. My own independent research, however,
reveals that Ms. Shiner has been licensed for less than one year. 3 Although her requested
rate is within the range of attorneys with less than four years’ experience, it is on the
higher end. For Ms. Shiner, I find the requested rate of $185 per hour for time billed in
2021 to be more appropriate.
I make no other adjustments to the total work performed on this matter. Application
of this lower rate for Ms. Shiner reduces the total fees to be awarded only by $6.00. 4
B. Martin Martinez, Esq.
Petitioner requests rates for prior counsel, Martin Martinez, as follows: $440 per
hour for 2017; $455 per hour for time billed in 2018; $464 per hour for time billed in 2019
and $484 per hour for time billed in 2020. These rates require adjustment.
1. Hourly Rates
3
https://apps.calbar.ca.gov/attorney/LicenseeSearch/QuickSearch?FreeText=Meghan+Lee+Shiner&Soun
dsLike=false
4
This amount consists of $200 - $185 = $15 x 0.4 hrs = $6.00.
3
Mr. Martinez has previously been awarded the rate of $400 per hour for time billed
2017. See Leonard v Sec’y of Health & Human Servs., No. 15-1135V, 2017 WL 7310151,
(Fed. Cl. Spec. Mstr. Aug. 7, 2017). I agree with the previous special master in adopting
this rate and award it herein. However, I must adjust the requested rates for 2018 - 2020
based on this earlier rate. For these subsequent years, I will award the following rates:
$424 per hour for time billed in 2018; $440 per hour for time billed in 2019, and $464 per
hour for time billed in 2020. This reduces the amount to be awarded for his work on the
matter by $2,557.40. 5
2. Paralegal Tasks at Attorney Rates
Fees to be awarded in this case must also be reduced to account for work billed
for paralegal tasks. Attorneys may be compensated for paralegal-level work, but only at
a rate that is comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec’y
of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec.
Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v.
Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec.
Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health & Human Servs., 99-382V, 2009 WL
3319818, at *20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health &
Human Servs., No. 99-535, 2008 WL 5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23,
2008).
Mr. Martinez billed over 21 hours on tasks that are more properly characterized as
paralegal tasks, including requesting medical records, mailing and filing documents.
Examples of these (which are not an exhaustive list) include the following:
• December 29, 2017 (0.50 hrs) “Marshalled records exhibits”;
• December 29, 2017 (0.30 hrs) “Filed statemen of completion and 1st set of
exhibits”;
• April 4, 2018 (0.30 hrs) “Filed Affidavit”;
• October 26, 2018 (0.50 hrs) “Served vista via acknowledgement of receipt
with letter”; and
5
This amount consists of ($440 - $400 = $40 x 13.40 hrs = $536.00) + ($455 - $425 = $30 x 36.10 hrs =
$1,083.00) + ($464 - $440 = $24 x 34.10 hrs = $818.40) + ($484 - $460 - $24 x 5 hrs = $120) = $2,557.40.
4
• November 12, 2018 (2.50 hrs) “Prepared exhibits for filing.”
(ECF No. 73 at 30 – 32).
I shall reduce Mr. Martinez’s rate for these tasks to $145 per hour, which is
comparable to what a paralegal would receive. This further reduces the awardable
attorney fees by the additional sum of $5,980.00. 6
ATTORNEY COSTS
Petitioner requests $124.61 in costs incurred by attorney Michael Firestone, and
$475.00 in costs incurred by attorney Martin Martinez. (ECF No. 73 at 2). These amounts
are comprised of obtaining medical records, shipping costs and the Court’s filing fee. I
have reviewed all of the requested costs and find them to be reasonable and shall award
it in full.
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, and award a total of
$40,075.37, consisting of:
• $7,574.27 in fees and costs to be awarded to Michael A. Firestone, and
• $32,501.10 in fees and costs to be awarded to Martin J. Martinez.
This award shall be a lump sum in the form of a check jointly payable to Petitioner
and Michael Firestone, MD, JD & Associates, LLP. Mr. Firestone will disperse funds
incurred by Mr. Martinez appropriately. 7 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. 8
6
This amount consists of ($400 - $145 = $255 x 1.9 hrs = $484.50) + ($425 - $145 = $280 x 19.1 hrs =
$5,348.00) + ($440 - $145 = $295 x 0.5 hrs = $147.50) = $5,980.00.
7
Mr. Martinez passed away bef ore this preceding was concluded. Mr. Firestone, with the agreement of
Respondent’s counsel, will f acilitate f unds awarded to Mr. Martinez’s to his widow, Diana Dorame. (ECF
No. 73 at 1).
8
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6