Avera v. Secretary of Health and Human Services

DYK, Circuit Judge.

This case involves a dispute over the proper calculation and award of attorneys’ fees under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to -34 (2000) (“Vaccine Act”). Appellants Marty and Kellie Avera, as parents and next friends of their son Connor Avera, sought an award of attorneys’ fees after unsuccessfully pursuing a vaccine injury claim. They appeal from a decision of the United States Court of Federal Claims. That decision affirmed a decision by a special master, awarding the appellants fees based on the hometown rates charged in Cheyenne, Wyoming, rather than the rates charged in the District of Columbia and denying appellants’ request for interim fees. Avera v. Sec’y of Health & Human Servs., 75 Fed.Cl. 400, 406 (2007). We affirm.

BACKGROUND On August 26, 2004, Marty and Kellie Avera filed a petition for vaccine injury compensation in the Court of Federal Claims on behalf of their son, Connor. In the petition, the Averas claimed that Con-nor had suffered an encephalopathy in response to one of a number of vaccines that he received in 2001, and sought damages under the Vaccine Act. The petition included two claims: an encephalopathy table injury claim and a cause-in-fact claim. See Walther v. Sec’y of Health & Human Servs., 485 F.3d 1146, 1149 (Fed.Cir.2007) (describing table injury claims and cause-in-fact claims). On August 22, 2005, appellants abandoned the encephalopathy table injury claim but stated that they intended to pursue the cause-in-fact claim. On November 23, 2005, after a number of extensions and requests from the special master for the submission of medical reports to substantiate their cause-in-fact claim, appellants explained that they were unable to obtain a validating medical expert opinion and requested that the special master decide the case on the merits based on the current state of the record. In response, the special master concluded in a decision dated December 21, 2005, that, on the record before him, appellants were not entitled to secure compensation under the Vaccine Act. Appellants did not seek review of that decision.