Denial of Review


Scharffenberger v. HHS, (Fed. Cl. Spec. Mstr. Nov. 10, 2015) (Williams, J)

The Special Master had reduced a DC vaccine attorney’s hourly rate of $361 to $305.  Petitioner argued that the Special Master had erroneously applied a rate based on Vaccine Act practitioners generally instead of the District of Columbia forum rate.

The reviewing judge held that the Special Master properly narrowed the relevant forum from DC generally to the Vaccine Program, because Avera requires reference to the rate “prevailing in the community for similar services by lawyers of reasonably comparable skill.”  It was not specifically addressed that the Special Master had not precisely narrowed the pool of comparable attorneys from DC attorneys generally to DC attorneys practicing in the Vaccine Program, but rather had substituted all Vaccine Program attorneys as the comparable pool, regardless of their geographic location.  The decision did mention that the hourly rates of other vaccine attorneys in the firm’s Florida office were relevant to the hourly rate determination of its DC-based attorneys.  Not mentioned in the decision is that those hourly rates had been determined in prior fee litigation based on proving the prevailing rates for Florida attorneys.  A similar analysis for paralegal rates was also upheld.

The Court also upheld a denial of costs for an attorney’s fee expert witness.  The Court did award the majority of appellate fees and costs requested.

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