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SHANE D. LEAK, * Not for Publication 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1 Because this unpublished decision contains a reasoned explanation for the action in this case, it 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 EGovernment 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).
2

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. 
3

 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 Calculator3to 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. 

Richards’ 

Requested 

Rate

Adjusted 

Rate

Difference Hours Fees 

Requested

Deduction Fees 

Awarded

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 300625 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. 
4

Paralegals’ 

Requested 

Rate

Adjusted

Rate

Difference Hours Fees 

Requested

Deduction Fees 

Awarded

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-TannerStrickland-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). 
5

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).