United States Court of Appeals 

for the Federal Circuit 

__________________________ 

ESTHER HALL, 

Petitioner-Appellant, 

v. 

SECRETARY OF HEALTH AND HUMAN 

SERVICES, 

Respondent-Appellee. 

__________________________ 

2010-5126 

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no.02-VV-1052, Judge Lynn J. Bush. 

__________________________ 

Decided: April 1, 2011 

__________________________ 

RICHARD GAGE, Richard Gage, P.C., Cheyenne, Wyoming, argued for petitioner-appellant. 

ANN D. MARTIN, Trial Attorney, Torts Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on 

the brief were TONY WEST, Assistant Attorney General, 

TIMOTHY P. GARREN, Director, MARK W. ROGERS, Deputy 

Director, and CATHARINE E. REEVES, Assistant Director. 

__________________________ 
HALL v. HHS 2

Before BRYSON, GAJARSA, and MOORE, Circuit Judges. 

GAJARSA, Circuit Judge. 

Esther Hall appeals from a final decision from the 

United States Court of Federal Claims (“Claims Court”), 

which affirmed the special master’s award of attorneys’ 

fees under 42 U.S.C. § 300aa-15 of the National Childhood 

Vaccine Injury Act of 1986 (“Vaccine Act”). The issue 

before us is whether the special master erred in awarding 

attorneys’ fees at the local hourly rate instead of the 

forum hourly rate. For the reasons discussed below, we 

hold that the special master properly awarded attorneys’ 

fees at the local hourly rate, and we affirm the Claims 

Court’s decision. 

BACKGROUND

Hall was awarded compensation under the Vaccine 

Act for an injury to her shoulder caused by a hepatitis B 

vaccination. Hall v. Sec’y of Health & Human Servs., 93 

Fed. Cl. 239, 241 (2010) (“CFC Op.”). The Vaccine Act 

“established a Federal ‘no-fault’ compensation program 

under which awards can be made to vaccine-injured 

persons quickly, easily, and with certainty and generosity.” H.R. Rep. No. 99-908, at 3 (1986), reprinted in 1986 

U.S.C.C.A.N. 6344. Where, as here, the petitioner obtains 

compensation, she is entitled to attorneys’ fees and costs 

pursuant to § 300aa-15(e), the amount of which is determined by the special master.1 

Generally, attorneys’ fees are awarded at the forum 

hourly rate. This court, however, created an exception to 

this general rule in Avera v. Secretary of Health & Human 

 1 Even if the petitioner does not prevail, the special 

master may still award attorneys’ fees and costs so long 

as there was a reasonable basis for the suit and the suit 

was brought in good faith. 42 U.S.C. § 300aa-15(e). 
3 HALL v. HHS

Services, 515 F.3d 1343 (Fed. Cir. 2008), for cases arising 

under the Vaccine Act. In Avera, this court held that 

where the bulk of the work is performed outside the forum 

and there is a “very significant difference” between the 

local hourly rate and the forum hourly rate, attorneys’ 

fees should be awarded at the local hourly rate. Id. at 

1349 (quoting Davis Cty. Solid Waste Mgmt. & Energy 

Recovery Special Serv. Dist. v. U.S. Envtl. Prot. Agency, 

169 F.3d 755, 758 (D.C. Cir. 1999)). Applying this exception ensures that attorneys are awarded reasonable 

compensation for their work and more appropriately 

reflects the purpose of a fee-shifting statute, especially in 

cases arising under the no-fault Vaccine Act. This exception is known as the “Davis County exception,” as it was 

adopted from a case having the same name issued by the 

United States Court of Appeals for the District of Columbia. See Davis Cty., 169 F.3d at 758. The dispute in this 

appeal arises from the special master’s application of the 

Davis County exception. 

In the present case, Hall initially requested 

$83,400.34 in attorneys’ fees and costs for the work performed by her attorney Richard Gage, who practices in 

Cheyenne, Wyoming. CFC Op. at 242. Hall arrived at 

this calculation based on Mr. Gage’s hourly rate from 

August 2002 until April 2009, when her case terminated. 

For legal work performed by Mr. Gage between August 

2002 and December 2005, Hall requested fees based on an 

hourly rate of $175 to $200. Id. at 242 n.4. For Mr. 

Gage’s work from January 2006 until April 2009, Hall 

requested fees based on an hourly rate of $360 to $410. 

Id. at 242. 

The special master awarded Hall interim attorneys’ 

fees in the amount of $51,854.55. Id. The special master 

calculated the interim attorneys’ fees using the lodestar 

method, which requires “multiplying the number of hours 
HALL v. HHS 4

reasonably expended on the litigation times a reasonable 

hourly rate,” and then adjusting that number up or down 

based on other specific findings. Avera, 515 F.3d at 1347-

48 (internal citation and quotation marks omitted). 

The special master used an hourly rate of $175 to 

$200 for August 2002 to December 2005 to calculate an 

attorneys’ fees award of $28,393.95 for that time period. 

Hall v. Sec’y of Health & Human Servs., Case No. 02-VV1052, 2009 WL 3094881, at *4 (Fed. Cl. Spec. Mstr. July 

28, 2009) (“Interim Special Master Op.”). Although the 

parties disputed the appropriate hourly rate for Mr. 

Gage’s work between January 2006 and April 2009, the 

special master awarded attorneys’ fees based on an hourly 

rate of $219 to $239—the lowest amount that would be 

awarded—for a total of $23,461.30 in fees. Id. 

In his final decision, the special master awarded Hall 

an additional $22,018 in attorneys’ fees, which were 

calculated using the local, instead of forum, hourly rates. 

Hall v. Sec’y of Health & Human Servs., Case No. 02-VV1052, 2009 WL 3423036, *1 (Fed. Cl. Spec. Mstr. Oct. 6, 

2009) (“Final Special Master Op.”). The special master 

applied the Davis County exception because Mr. Gage did 

not perform any work related to this case in Washington, 

D.C. and the local and forum hourly rates were very 

significantly different. Id. at *20, *28. The special master compared Mr. Gage’s local hourly rate of $220 to $240 

with his forum hourly rate of $350; the forum hourly rate 

was 59 percent greater than the local hourly rate. Id. at 

*20-21, *26. The special master found that this was a 

very significant difference based on three Vaccine Act 

cases and one Clean Air Act case. In those cases, the 

difference between the local and forum hourly rates 

ranged from 46 to 60 percent. Id. at *20-21. Because the 

difference here—59 percent—was within that range, the 
5 HALL v. HHS

special master found that these rates, too, were very 

significantly different.2 Id. 

Hall was dissatisfied with this award, however, and 

appealed the special master’s final decision to the Claims 

Court. She requested an additional $11,477.20 in attorneys’ fees for work performed from January 2006 to April 

2009, but the Claims Court denied the request.3 CFC Op.

at 250. The Claims Court rejected Hall’s argument that 

Richlin Security Service Co. v. Chertoff, 553 U.S. 571 

(2008), overruled the use of the Davis County exception. 

The court upheld the special master’s determination that 

“there is a very significant difference between local market rates in Cheyenne and forum rates in Washington, 

D.C.” CFC Op. at 245. The Claims Court also denied 

Hall’s subsequent motion for reconsideration, which 

claimed that the court had established a new rule of law 

and had miscalculated the difference between the forum 

hourly rate and the local hourly rate. Id. at 252-54. Hall 

appeals, and we have jurisdiction pursuant to 28 U.S.C. 

§ 1298(c). 

 2 The special master relied on the decision in Masias v. Secretary of Health & Human Services, Case No. 

06-VV-559, 2009 WL 1838979 (Fed. Cl. Spec. Mstr. June 

12, 2009), which upheld a determination that local and 

forum hourly rates differing by 59 percent were “very 

significantly different.” This court recently affirmed the 

Claims Court’s decision in Masias v. Secretary of Health & 

Humans Services, 2010-5077, slip op. at 3 (Fed. Cir. Mar. 

15, 2011). 

3 After the special master’s final decision, the parties filed a joint motion requesting that the amount of the 

award in the special master’s final decision be reduced to 

$2,231.70 because the fee award failed to take into account his previous interim award of $23,461.30 for the 

same time period. CFC Op. at 242. 
HALL v. HHS 6

STANDARD OF REVIEW

This court “review[s] an appeal from the Court of Federal Claims in a Vaccine Act case de novo, applying the 

same standard of review as the Court of Federal Claims 

applied to its review of the special master’s decision.” 

Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 

1339, 1345 (Fed. Cir. 2010) (citation omitted). Under 42 

U.S.C. § 300aa-12, the Claims Court may “set aside any 

findings of fact or conclusion of law of the special master 

found to be arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law . . . .” Thus, we 

review fact findings under the arbitrary and capricious 

standard, discretionary rulings under the abuse of discretion standard, and legal questions de novo under the “not 

in accordance with the law” standard. Saunders v. Sec’y 

of Health & Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 

1994). Generally in cases under the Vaccine Act, “[i]f the 

special master has considered the relevant evidence of 

record, drawn plausible inferences and articulated a 

rational basis for the decision, reversible error will be 

extremely difficult to demonstrate.” Hines v. Sec’y of 

Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 

1991). 

DISCUSSION

The essence of Hall’s appeal is to eliminate the Davis 

County exception to the general rule that forum hourly 

rates are used to calculate attorneys’ fees. First, she 

reiterates her claim that the Supreme Court’s decision in 

Richlin overruled the application of the Davis County

exception. Hall’s second attempt at eliminating the Davis 

County exception is more circumspect. She asserts that 

the very significant difference determination is a question 

of law and that this court should set a percentage or 

absolute dollar amount that constitutes such a difference. 
7 HALL v. HHS

She then makes the leap that the forum hourly rate 

should be reduced so that it does not exceed the threshold 

set by the court, thus ensuring counsel would never be 

awarded attorneys’ fees at the local hourly rate. As 

discussed below, neither of these arguments have merit. 

I. 

Our recent decision in Masias v. Secretary of Health & 

Humans Services, 2010-5077, slip op. at 8 (Fed. Cir. Mar. 

15, 2011) disposes of Hall’s argument that Richlin prevents the application of the Davis County exception to 

Vaccine Act cases. In Masias, this court held that Richlin’s “adoption of market rates for paralegal fees is not 

contrary to Avera.” Id. Indeed, the statute in Richlin, 5 

U.S.C. § 504(a)(1), specifically requires that attorneys’ 

fees be calculated at “prevailing market rates.” Neither 

42 U.S.C. § 7607(f), the statute in Davis County, nor the 

Vaccine Act have a similar limitation on the calculation of 

attorneys’ fees. Thus, until Avera is overturned by the 

Supreme Court or by this court sitting en banc, it remains 

binding precedent. See Masias, slip op. at 8 (citing Barclay v. United States, 443 F.3d 1368, 1373 (Fed. Cir. 

2008); McAllister v. Sec’y of Health & Human Servs., 70 

F.3d 1240, 1242 (Fed. Cir. 1995)). 

II. 

Hall’s next attempt to eliminate the Davis County exception in Vaccine Act cases similarly fails. She alleges 

that one part of the Davis County exception—the determination of whether the local and forum hourly rates are 

very significantly different—is a question of law. Based 

on this allegation, Hall urges the court to set a bright line 

rule for what constitutes a very significant difference. 

Hall then asks the court to establish a new requirement 

that the forum hourly rate should be reduced so that the 

forum hourly rate falls below the threshold of what consti-
HALL v. HHS 8

tutes a very significant difference.4 Thus, in Hall’s world, 

the Davis County exception would never apply. 

As an initial matter, Hall essentially asks this court 

again—albeit in a less direct manner—to overturn Avera’s 

adoption of the Davis County exception by reducing 

reasonable forum hourly rates to eliminate a very significant difference. As explained supra, a panel of this court 

cannot overturn another panel. See Barclay, 443 F.3d at 

1373. This court declines to do so. 

More broadly, Hall’s assertion that the determination 

of whether there is a very significant difference between 

the local and forum hourly rates should be a question of 

law is erroneous. Of the three categories of judicial 

decisions—questions of law, questions of fact, and matters 

of discretion, see Pierce v. Underwood, 487 U.S. 552, 558 

(1988)—the standard of review for the determination of 

reasonable attorneys' fees is abuse of discretion. See

Saxton ex. rel. Saxton v. Sec’y of Health & Human Servs., 

3 F.3d 1517, 1520 (Fed. Cir. 1993) (citation omitted) (“The 

determination of the amount of reasonable attorneys’ fees 

is within the special master’s discretion.”). Of course, a 

special master’s failure to apply the Davis County exception where he or she has found that the bulk of the work 

was performed outside the forum and the difference 

 4 Hall provides the following example, see Pet’r’s Br. 

14: assume the bright line rule states that local and forum 

hourly rates are very significantly different if they are 

more than $100 apart. Further assume that the local rate 

is $240 and the forum rate is $350 per hour. Under Hall’s 

proposal, the court should reduce the forum rate to $340 

per hour so that it falls within the $100 threshold for 

what constitutes a very significant difference. Thus, 

attorneys’ fees would be awarded at the $340 per hour 

rate. 
9 HALL v. HHS

between local and forum hourly rates is very significantly 

different would be incorrect as a matter of law. 

This court’s decision to apply an abuse of discretion 

standard is guided by the principles enunciated in Pierce, 

where the Supreme Court found that the abuse of discretion standard was appropriate for reviewing a district 

court’s determination of attorneys’ fees under 28 U.S.C. 

§ 2412(d)(1)(A). 487 U.S. at 559-63. The Court explained 

that in deciding the appropriate standard of review, a 

court should consider the language of the applicable law 

and principles of “sound judicial administration.” Id. The 

Court focused on the statutory language in 28 U.S.C. 

§ 2412(d)(1)(A) that said attorneys’ fees must be awarded 

“unless the court finds that the position of the United 

States was substantially justified.” Id. (quoting 28 U.S.C. 

§ 2412(d)(1)(A)). The Court reasoned that this language 

“emphasizes [that] the fact determination is for the district court to make, and thus suggests some deference to 

the district court.” Id. Furthermore, the district court was 

better positioned than the appellate court to decide 

whether the Government’s position was “substantially 

justified” because it was intimately familiar with all the 

facts before it. Id. at 560; see Hensley v. Eckerhart, 461 

U.S. 424, 437 (1983) (finding that the district court had a 

“superior understanding of the litigation”). Finally, the 

Court found that determining whether a position was 

“substantially justified” is a “multifarious and novel 

question” that would “likely profit from the experience 

that an abuse-of-discretion rule will permit to develop.” 

Pierce, 487 U.S. at 562. The Court concluded that based 

on these considerations, an abuse of discretion standard 

was appropriate. Id. at 563. 

Application of the Pierce factors to this case requires a 

similar result. First, both 42 U.S.C. § 300aa-15(e) and the 

Davis County exception require a detailed multi-
HALL v. HHS 10

component determination by the special master. See

Pierce, 487 U.S. at 559. Section 300aa-15(e) states that 

“the special master or court shall also award as part of 

such compensation an amount to cover . . . reasonable 

attorneys’ fees.” Thus, the statute leaves it to the special 

master’s discretion to find what constitutes reasonable 

fees. The Davis County exception requires a further 

application of the special master’s findings to determine 

whether or not there is a very significant difference 

between local and forum hourly rates. 

The special master is also intimately familiar with the 

facts necessary to make the very significant difference 

determination. See Pierce, 487 U.S. at 560. In calculating 

the local and forum hourly rates, the special master 

assesses the reasonable hourly rate “prevailing in the 

[forum or locally] for similar services by lawyers of reasonably comparable skill, experience, and reputation.” 

Avera, 515 F.3d at 1348 (quoting Blum v. Stenson, 465 

U.S. 886, 896 n.11 (1984)). In making his determination, 

the special master relies on declarations, previous comparable litigation, and his or her own experience in similar 

cases. See Saxton, 3 F.3d at 1521. Once the special 

master determines the local and forum hourly rates, he 

must compare them. The special master is better 

equipped to decide whether or not there is a difference 

between the two rates and the degree of that difference, 

as his or her “superior understanding of the litigation”—

something an appellate court lacks—is essential to this 

determination. See Hensley, 461 U.S. at 437 (explaining 

that attorneys’ fees determinations are “essentially factual matters”). 

Relatedly, setting a rule as to what constitutes a very 

significant difference between local and forum hourly 

rates would be stifling and impractical. See Pierce, 487 

U.S. at 562. As explained above, making this determina-
11 HALL v. HHS

tion is multifaceted and the experience of the special 

master is invaluable to it. Special masters should, as in 

this case, continue to rely on the evidence before them 

and their own trial experience in similar litigations in 

making such a determination. 

Here, the special master undertook a detailed analysis of reasonable local and forum hourly rates in Vaccine 

Act cases and other similar litigation. He also examined 

previous Vaccine Act cases and a Clean Air Act case that 

found the local and forum hourly rates were very significantly different. The following chart lists the local and 

forum hourly rates from those cases and the percentage 

difference between them: 
HALL v. HHS 12

Case Local 

Hourly 

Rate 

Forum 

Hourly 

Rate 

Percentage 

Difference 

Sabella v. Sec’y of 

Health & Human 

Servs., Case No. 02-

VV-1627, 2008 WL 

4426040 (Fed. Cl. 

Spec. Mstr. Sept. 23, 

2008) rev’d on other 

grounds, 86 Fed. Cl. 

201 (Fed. Cl. 2009) 

$300 $440 46% 

Masias, 2009 WL 

1838979 

$220 $350 59% 

Rodriguez v. Sec’y of 

Health & Human 

Servs., Case No. 06-

VV-0559, 2009 WL 

2568468 (Fed. Cl. 

Spec. Mstr. July 27, 

2009)

$450 $275 60% 

Rocky Mountain 

Clean Air Action v. 

Johnson, Case No. 

05-CV-1992, 2008 

WL 1885333 (D.D.C. 

Jan. 28, 2008) 

$225 $360 60% 

As the chart shows, the local and forum hourly rates in 

those cases ranged from 46 to 60 percent. Here, the 

difference between Mr. Gage’s local hourly rate of $220 to 
13 HALL v. HHS

$240 and his forum hourly rate of $350 was 59 percent, 

which the special master found to be very significant. The 

special master’s attorneys’ fees decision was within the 

parameters of the cases on which he relied and was not an 

abuse of discretion. 

CONCLUSION

For the foregoing reasons, we affirm the decision of 

the Claims Court. 

AFFIRMED

COSTS

No costs.