    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                         No. 13-712V
                                      Filed: May 2, 2017

*************************
SHANE D. LEAK,                             *       Not for Publication
                                           *
                      Petitioner,          *
       v.                                  *       Attorneys’ Fees and Costs;
                                           *       Hourly Rate; Non-Forum.
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
                      Respondent.          *
*************************
David Richards, Christensen & Jensen, P.C., Salt Lake City, UT, for petitioner.
Althea Davis, United States Department of Justice, Washington, DC, for respondent.

          DECISION GRANTING ATTORNEYS’ FEES AND COSTS IN PART1

Roth, Special Master:

        On September 23, 2013, Shane Leak (“Mr. Leak” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.2 (the “Vaccine Act” or “Program”). Petitioner alleged an influenza (“flu”) vaccine he
received on September 29, 2010 led to the development of Acute Disseminated
Encephalomyelitis (“ADEM”). See generally Petition (“Pet.”), ECF No. 1. The parties agreed to
informally resolve this matter, and the undersigned issued a decision awarding petitioner
compensation on September 16, 2016. Decision, ECF No. 54. Petitioner now seeks an award of
attorney’s fees and costs in the amount of $70,625.64, pursuant to Section 15(e) of the Vaccine
Act. Motion for Attorneys’ Fees (“Motion for Fees”), ECF No. 58, at 2. After careful


1
  Because this unpublished decision contains a reasoned explanation for the action in this case, it
will be posted on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance
with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete 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 delete such
material from public access.
2
 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (1986).
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
consideration, the undersigned has determined to grant the request in part for the reasons set
forth below.
                                    I.     Applicable Law.

        The Vaccine Act permits the payment of reasonable fees and costs. § 15(e). This is a
discretionary determination made by the Special Master, requiring no line by line analysis.
Broekelschen v. Sec’y of HHS, 102 Fed. Cl. 719, 729 (2011). The fact finder uses a lodestar
method – multiplying a “reasonable” fee by the hours the attorney worked. Blanchard v.
Bergeron, 489 U.S. 87, 94 (1989); Schueman v. Sec’y of HHS, No. 04-693V, 2010 WL 3421956,
at *3 (Fed. Cl. Spec. Mstr. Aug. 11, 2010). While respondent does have the opportunity to object
to said amount, pursuant to the Vaccine Rules, when no justification or specific objection is
proffered, her “representation carries very little weight.” Reyes v. Sec’y of HHS, No. 14-953V,
2016 WL 2979785, at *1 (Fed. Cl. Spec. Mstr. Apr. 27, 2016) (specifically when the attorneys of
record supply detailed time sheets and present a complete case).

        The Federal Circuit advised in Avera that “to determine an award of attorneys’ fees, a
court in general should use the forum rate in the lodestar calculation.” Avera v. Sec’y of HHS,
515 F.3d 1343, 1349 (Fed. Cir. 2008). The Court noted that the forum rate should only be
deviated from when the “Davis exception” applies. Id. The Davis exception applies when the
bulk of an attorney’s work “is done outside the jurisdiction out of the court and where there is a
very significant difference in compensation favoring D.C.” Id. (citing Davis Cnty. Solid Waste
Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. E.P.A., 169 F.3d 755, 758 (D.C. Cir. 1999)
(emphases in original).

       The recent decision in McCulloch provides a framework for consideration of appropriate
ranges for attorneys’ fees based on the experience of a practicing attorney. McCulloch v. Sec’y of
HHS, No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) motion for
recons. denied, 2015 WL 6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015). According to
McCulloch, if an attorney has been practicing for 20 or more years, an appropriate range is
approximately $350 to $425 per hour. Id. If an attorney has 11 to 19 years of experience, $300 to
$375 is proper. Id. An appropriate range for an attorney with 8 to 10 years of experience would
be $275 to $350. Id. For 4 to 7 year years of experience, $225 to $300 is sufficient. Id. If an
attorney has fewer than 4 years of experience, he/she should receive between $150 and $225. Id.

                                     II.     Attorneys’ Fees.

        Petitioner has requested $52,455.00 in attorneys’ fees and $18,170.64 in costs, for a total
of $70,625.64. Motion at 2. In accordance with General Order #9, petitioner’s counsel has filed
an affidavit from petitioner in which petitioner affirms that he did not incur any out-of-pocket
expenses. See Pet. Ex. 19. Respondent filed a response to petitioner’s motion for fees on April
27, 2017. Respondent made no specific objection to petitioner’s fee application, but merely
stated that he was satisfied that the requirements for an award of fees and costs had been met,
and recommended “that the special master exercise her discretion and determine a reasonable
award for attorneys’ fees and costs.” Response at 2-3.




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       Petitioner has requested the following hourly rates for Mr. David Richards: $300 for
work performed in 2010; $325 for work performed from 2011 to 2016; and $350 for work
performed in 2017. Additionally, petitioner has requested hourly rates of $200 for Mr. Richards’
associate, Tanner Lenart, and $125 for Mr. Richards’ paralegals.

        In the instant application, petitioner has requested forum rates for Mr. Richards, Mr.
Lenart, and their paralegals. However, a recent decision has held that Mr. Richards falls within
the Davis exception and therefore does not qualify for forum rates. Special Master Corcoran
opined in Atnip v. Sec’y of HHS, No. 14-1006, 2016 WL 4272057 (Fed. Cl. Spec. Mstr. Jul. 6,
2016) that “the Davis case involved attorneys practicing in Salt Lake City, Utah – Mr. Richards’s
place of business.” Id. at 5. Moreover, Davis specifically characterized Utah as a “less expensive
legal market” in comparison to Washington, D.C. Special Master Corcoran awarded Mr.
Richards an hourly rate of $300 for work performed in 2015, and adjusted it using the Consumer
Price Index Calculator3 to derive hourly rates for 2013, 2014, and 2016.4 The special master
found that an appropriate hourly rate for Mr. Richards’ paralegals was $100 for 2014 and 2015. I
hereby follow his approach, and award attorneys’ fees accordingly:5

             Mr.          Adjusted    Difference       Hours   Fees        Deduction    Fees
             Richards’    Rate                                 Requested                Awarded
             Requested
             Rate
    2010     300          275         25               2.6     780         65           715
    2011     325          285         40               7.1     2307.50     284          2023.50
    2012     325          292         33               6.6     2145        217.80       1927.20
    2013     325          295         30               18.6    6045        558          5487
    2014     325          3006        25               31.3    10,172.50   782.50       9390
    2015     325          300         25               25.8    8385        645          7740
    2016     325          304         21               14.1    4582.50     296.10       4286.40
    2017     350          311         39               2.5     875         97.50        777.50
    Total                                                      35,292.50   2945.90      32,346.60




3
  CPI Inflation Calculator, U.S. Bureau of Labor Statistics, http://data.bls.gov/cgi-bin/cpicalc.pl
(last accessed April 28, 2017) (“CPI Calculator”).
4
    Rates have been rounded to the nearest whole dollar.
5
 Mr. Richards’ hourly rate for 2017 will be determined here by adjusting his 2016 rate using the
PPI-OL index. The PPI-OL data is available at www.bls.gov/ppi/#data. The industry code for
“Offices of Lawyers” is 541110.
6
  The CPI Calculation for 2014-2015 resulted in a difference of 11 cents; therefore, it was
rounded to the nearest dollar - $300.

                                                   3
            Paralegals’   Adjusted     Difference       Hours   Fees        Deduction    Fees
            Requested     Rate                                  Requested                Awarded
            Rate
    2011    125           95           30               15.9    1987.50     477          1510.50
    2012    125           97           28               25.3    3162.50     708.40       2454.10
    2013    125           98           27               49.9    6237.50     1347.30      4890.20
    2014    125           100          25               29.1    3637.50     727.50       2910
    2015    125           100          25               16.3    2037.50     407..50      1630
    Total                                                       17,062.50   3667.70      13,394.80

        Ms. Lenart billed only 0.5 hours of work in this matter. Additionally, petitioner has not
submitted any information on Ms. Lenart’s experience or credentials. However, based on her
profile on the firm website,7 it appears that Ms. Lenart has been practicing for six years and is
not currently admitted to the Court of Federal Claims. In order to be eligible to practice in the
Vaccine Program, an attorney must be admitted to practice in the Court of Federal Claims; an
attorney who is not eligible to practice in the Vaccine Program cannot recover attorneys’ fees.
Underwood v. Sec’y of HHS, No. 00-357V, 2013 WL 3157525, at *4 (Fed. Cl. Spec. Mstr. May
31, 2013). Therefore, Ms. Lenart will not be paid for the 0.5 hours billed, and petitioner’s fee
award will be reduced a further $100, for a total reduction of $6,713.60.

        After reviewing the billing records, the amount of hours billed seems reasonable and I see
no erroneous or duplicative billing. See generally Pet. Ex. 20. I therefore see no reason to further
reduce petitioner’s fees, other than the reductions made above. Petitioner is awarded $45,741.40
in attorneys’ fees.

                                             III.       Costs

       Petitioner has requested $18,170.64 in costs, including $12,658.12 in life care planning
services, $2630.50 in forensic accounting services, and $1,178.68 in costs associated with
obtaining medical records. Pet. Ex. 20 at 21-24. These costs appear to be reasonable and
appropriate in light of the facts of this case; therefore, I see no need to reduce them.

                                 IV.        Total Award Summary.

       In light of the foregoing and pursuant to § 15(e)(1), I find that petitioner is entitled to an
award of fees and costs. For the reasons contained herein, a check in the amount of $63,912.048

7
 “Tanner Strickland Lenart,” Christensen & Jensen, http://www.chrisjen.com/Attorney-Tanner-
Strickland-Lenart (last accessed April 28, 2017).
8
  This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs,” as well as fees for
legal services rendered. Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from
charging or collecting fees (including costs) that would be in addition to the amount awarded
herein. See generally Beck v. Sec’y of HHS, 924 F.2d 1029 (Fed. Cir. 1991).

                                                    4
made payable jointly to petitioner, Shane Leak, and petitioner’s counsel of record, David
Richards, for petitioner’s attorneys’ fees and costs shall be issued.

       The clerk of the court shall enter judgment in accordance herewith.9

IT IS SO ORDERED.


                                      s/Mindy Michaels Roth
                                      Mindy Michaels Roth
                                      Special Master




9
  Entry of judgment can be expedited by each party’s filing or a joint filing of a notice
renouncing the right to seek review. See Vaccine Rule 11(a).

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