Marty and KeMe Avera, parents of Connor Avera v. HHS - encephalopathy (2007)

Marty and KeMe Avera, parents of Connor Avera, filed a petition under the National Vaccine Injury Compensation Program on August 26, 2004, alleging their son suffered an encephalopathy resulting from three vaccines administered on August 29, 2001. The Special Master denied entitlement on December 21, 2005, finding the claim unsubstantiated by medical records or opinion, as the petition was decided on the record at the petitioners' request.

Subsequently, on February 27, 2006, the Averas filed an application for attorneys' fees and costs, initially requesting $12,073.77 based on Cheyenne, Wyoming rates. They later amended their application on March 27, 2006, seeking $18,576.06 by arguing for the application of Washington, D.C. rates, citing the "Laffey Matrix" and the "forum rule." The Special Master awarded $12,073.77 on August 29, 2006, rejecting the "forum rule" argument and adhering to Cheyenne, Wyoming rates.

The Averas moved for review of this decision, seeking the higher award or certification of the issue to the Federal Circuit. The Court of Federal Claims, in an opinion by Judge Wheeler, reviewed the Special Master's decision.

The Court affirmed the Special Master's award of $12,073.77, denying the request for higher fees based on the "forum rule" in favor of the "home town" market rate. The Court found that the "lodestar" method for determining attorneys' fees, which uses the prevailing market rate in the community where the attorney practices, was appropriate.

The Court rejected the "forum rule" argument, noting that the "Laffey Matrix" applies to specific fee-shifting statutes and not typically to Vaccine Act cases, which have a less adversarial and more informal proceeding. The Court also noted that the petitioners' counsel and the case had no connection to Washington, D.C., and that applying D.C. rates would provide a windfall to a Cheyenne-based attorney.

The Court denied the Averas' requests for interim payment of fees and for certification of the issue to the Federal Circuit, affirming the Special Master's award of $12,073.77 in attorneys' fees, costs, and personal expenses. Petitioner counsel was Robert Moxley.

Respondent was the Secretary of Health and Human Services.