In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: February 7, 2022

* * * * * * * * * * * * * * UNPUBLISHED

THOMAS LUCH, * No. 14-852V

* Special Master Horner

Petitioner, *

*

v. *

 *

SECRETARY OF HEALTH * Attorneys’ Fees and Costs

AND HUMAN SERVICES, *

 *

 Respondent. *

* * * * * * * * * * * * * * 

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner.

Adriana Teitel, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On September 15, 2014, Thomas Luch (“petitioner”) filed a claim under the National 

Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012).

2 Petitioner alleged that he

suffered chronic inflammatory demyelinating polyneuropathy following his receipt of an influenza 

vaccination on October 24, 2011. (ECF No. 1.) On November 27, 2020, the parties filed a 

stipulation, which I adopted as my decision awarding compensation on November 30, 2020. (ECF 

Nos. 174-75).

On February 11, 2021, petitioner filed an application for attorneys’ fees and costs. (ECF 

No. 180) (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of 

$119,340.28, representing $60,359.20 in attorneys’ fees and $58,981.08 in costs. Pursuant to 

General Order No. 9, petitioner has indicated that he has not personally incurred any costs in 

1 I intend to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling 

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. Because this unpublished ruling 

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).

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).
2

pursuit of this litigation. Fees App. at 152. Respondent filed his response on February 25, 2021, 

indicating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees 

and costs are met in this case.” Resp. at 2 (ECF No. 181). Petitioner did not file a reply thereafter.

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

The Vaccine Act permits an award of reasonable attorneys’ fees and costs. § 15(e). The 

Federal Circuit has approved the lodestar approach to determine reasonable attorneys’ fees and 

costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. 

Cir. 2008). This is a two-step process. Id. at 1347-48. First, a court determines an “initial estimate 

. . . by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable 

hourly rate.’” Id. (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Second, the court may 

make an upward or downward departure from the initial calculation of the fee award based on 

specific findings. Id. at 1348.

It is “well within the special master’s discretion” to determine the reasonableness of fees.

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines 

v. Sec’y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant 

the special master wide latitude in determining the reasonableness of both attorneys’ fees and 

costs.”). Applications for attorneys’ fees must include contemporaneous and specific billing 

records that indicate the work performed and the number of hours spent on said work. See Savin 

v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008). Such applications, however, 

should not include hours that are “‘excessive, redundant, or otherwise unnecessary.’” Saxton, 3 

F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum, 465 U.S. at 894-95. The “prevailing market rate” is akin to the rate 

“in the community for similar services by lawyers of reasonably comparable skill, experience and 

reputation.” Id. at 895, n.11. Petitioners bear the burden of providing adequate evidence to prove 

that the requested hourly rate is reasonable. Id.

Special masters can reduce a fee request sua sponte, without providing petitioners notice 

and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 

(Fed. Cl. 2009). When determining the relevant fee reduction, special masters need not engage in 

a line-by-line analysis of petitioners’ fee application. Broekelschen v. Sec’y of Health & Human 

Servs., 102 Fed. Cl. 719, 729 (Fed. Cl. 2011). Instead, they may rely on their experience with the 

Vaccine Program to determine the reasonable number of hours expended. Wasson v. Sec’y of Dep’t 

of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), rev’d on other grounds and aff’d in relevant 

part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to 

reduce hourly rates and the number of hours claimed in attorney fee requests . . . Vaccine program 

special masters are also entitled to use their prior experience in reviewing fee applications.” Saxton, 

3 F.3d at 1521.

a. Hourly Rates
3

The decision in McCulloch provides a framework for consideration of appropriate ranges 

for attorneys’ fees based upon the experience of the practicing attorney. McCulloch v. Sec’y of 

Health & Human Servs., 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). The 

Court has since updated the McCulloch rates, and the Attorneys’ Forum Hourly Rate Fee 

Schedules for 2015–2016, 2017, 2018, 2019, and 2020 can be accessed online.3

Petitioner requests the following hourly rates for the work of his counsel: for Mr. Richard 

Gage, $300.00 per hour for work performed in 2015, $311.00 per hour for work performed in 

2016, $318.00 per hour for work performed in 2017, $326.00 per hour for work performed in 2018, 

$338.00 per hour for work performed in 2019, $350.00 per hour for work performed in 2020, and 

$362.00 per hour for work performed in 2021; for Ms. Kristen Blume, $251.00 per hour for work 

performed in 2017 and 2018, $338.00 per hour for work performed in 2019, $350.00 per hour for 

work performed in 2020, and $355.00 per hour for work performed in 2021; and for Mr. Jim 

Mitchell, $285.00 per hour for work performed in 2015. These rates are reasonable with the 

exception of the one for Mr. Mitchell, who has previously been awarded $250.00 per hour for his 

Vaccine Program work in 2015. See, e.g., Mack v. Sec’y of Health & Human Servs., No. 15-149V, 

2017 WL 5108680, at *4 (Fed. Cl. Spec. Mstr. Sept. 28, 2017). Application of this rate results in 

a reduction of $147.00.

b. Hours Expended

Attorneys’ fees are awarded for the “number of hours reasonably expended on the 

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are 

“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521. While attorneys may be 

compensated for non-attorney-level work, the rate must be comparable to what would be paid for 

a paralegal or secretary. See O'Neill v. Sec'y of Health & Human Servs., No. 08–243V, 2015 WL 

2399211, at *9 (Fed. Cl. Spec. Mstr. Apr. 28, 2015). Clerical and secretarial tasks should not be 

billed at all, regardless of who performs them. See, e.g., McCulloch, 2015 WL 5634323, at *26.

Upon review, the overall number of hours billed appears to be reasonable. I have reviewed 

the billing entries and find that they adequately describe the work done on the case and the amount 

of time spent on that work. I do not find any of the entries to be objectionable, nor has respondent 

identified any as such. Petitioner is therefore awarded final attorneys’ fees of $60,212.20.

c. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable.

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests

a total of $58,981.08 in attorneys’ costs. This amount is comprised of acquiring medical records, 

the Court’s filing fee, photocopies, work performed by petitioner’s medical expert, Dr. Marcel 

Kinsbourne, and work performed by petitioner’s life care planner. Dr. Kinsbourne billed 37.6 

hours at $500.00 per hour for review of medical records and preparation of two expert reports. I 

3 The OSM Fee Schedules are available at: http://www.cofc.uscourts.gov/node/2914. 
4

find the hours billed reasonable for the work Dr. Kinsbourne performed in this case, and Dr. 

Kinsbourne has been consistently awarded that hourly rate. Therefore, the costs for his work are 

reasonable and shall be fully reimbursed. Additionally, the work performed by the life care planner 

appears reasonable given the particularly large amount of work this case required. Concerning the 

remainder of the costs, petitioner has provided adequate documentation of the requested costs and 

they appear to be reasonable in my experience. Petitioner is therefore awarded the full amount of 

costs sought.

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), I have reviewed the 

billing records and costs in this case and finds that petitioner’s request for fees and costs is 

reasonable. I find it reasonable to compensate petitioner and his counsel as follows: a lump sum 

in the amount of $119,193.28, representing reimbursement for petitioner’s attorneys’ fees 

and costs, in the form of a check payable to petitioner and petitioner’s counsel, Mr. Richard 

Gage.

In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the 

Court shall enter judgment in accordance herewith.4

IT IS SO ORDERED.

s/Daniel T. Horner

 Daniel T. Horner

Special Master

4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek 

review. Vaccine Rule 11(a).