In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 15-718V 

(Not to be Published) 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

 * 

STEVEN PANCOAST, * Special Master Corcoran 

 * 

 Petitioner, * Filed: November 16, 2016 

 * 

 v. * Decision; Attorney’s Fees and Costs. 

 * 

 * 

SECRETARY OF HEALTH AND * 

HUMAN SERVICES, * 

 * 

 Respondent. * 

 * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

William E. Cochran, Jr., Black McLaren Jones Ryland & Griffee, PC, Memphis, TN, for 

Petitioner. 

Sarah C. Duncan, U. S. Dep’t of Justice, Washington, DC, for Respondent. 

DECISION AWARDING ATTORNEY’S FEES AND COSTS1

On July 10, 2015, Steven Pancoast filed a petition seeking compensation under the National 

Vaccine Injury Compensation Program, alleging, among other things, that the influenza (“flu”) 

and Tetanus-diphtheria-acellular pertussis (“Tdap”) vaccines he received on November 20, 2012, 

caused his subsequent development of brachial neuritis.2

 ECF No. 1. 

 

1

 Because this decision contains a reasoned explanation for my action in this case, I will post this decision on the 

United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 

(2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the posted decision’s 

inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has 14 days 

within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial 

or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the 

disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the 

whole decision will be available to the public. Id.

2

 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). 

Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix). 
2 

Thereafter, the parties entered into informal settlement negotiations, and requested 

issuance of a “15 Week” Order, and I did so. ECF No. 17. The parties then filed their stipulation 

for an award of $172,667.50 in damages, as well as an amount sufficient to purchase an annuity 

contract, on August 17, 2016 (ECF No. 20), which I adopted as my decision granting damages on 

August 19, 2016. ECF No. 21. 

Petitioner has now filed a motion for a final award of attorney’s fees and costs, dated 

September 14, 2016. See ECF No. 25 (“Fees App.”). Petitioner requests reimbursement of 

attorney’s fees and costs in the amount of $46,045.763

 (representing attorney’s fees in the amount 

of $39,281.50, plus costs in the amount of $6,764.26). Id. In addition, and in compliance with 

General Order No. 9, Petitioner represents that he incurred no litigation-related expenses in 

conjunction with this proceeding. Id.

Respondent filed a brief reacting to Petitioner’s fees request on October 3, 2016. ECF No. 

27 (“Response”). Respondent asserted that the requested hourly rates for Petitioner’s counsel 

reflect forum rates, to which Petitioner’s counsel, the law firm of Black McLaren Jones Ryland & 

Griffee (“Black McLaren”), is not entitled. Id. at 1. Instead, Respondent argued that Petitioner’s 

counsel should receive the hourly rate awarded to attorneys in Memphis, Tennessee, because all 

of counsel’s work was performed outside the forum of Washington, DC, and because the hourly 

rate in Memphis is substantially lower than the forum rate.4 Id. at 2-3. As proof of the local hourly 

rate, Respondent relied on the lower hourly rates Black McLaren attorneys have accepted in past 

cases, several cases awarding lower hourly rates from the Western District of Tennessee (in which 

Memphis is located), and the 2014 Real Rate Report which suggests attorney rates based on 

location, experience, practice area, and firm size. Id. at 4-5. Respondent argued that these lower 

rates were more appropriate than the forum rates Petitioner requests. 

Aside from the appropriate hourly rate, Respondent also noted that the amount of 

reasonable attorney’s fees is within the special master’s discretion. Id. at 12. Though she did not 

take issue with the majority of the billing entries, she specifically alleged that Petitioner’s request 

for full compensation of travel time to and from a client meeting was overbilled and should be 

reduced. Id. Respondent ultimately maintained that a reasonable amount for fees and costs in the 

 

3

 This sum includes the additional $1,063.88 requested in Petitioner’s Reply to the Response, incurred in connection 

with filing the reply brief, plus additional work performed after filing the initial fees request. ECF No. 28 at 5.

4

 Respondent relied on the Davis County exception set forth in Avera to support this argument. Avera established the 

“forum rule,” which awards Vaccine Program attorneys the same hourly rates paid to attorneys with similar experience 

in the forum (here, Washington, DC). Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. Cir. 2008). 

The Davis County exception to the forum rule applies if the bulk of the attorney’s work was performed outside of 

Washington, DC, in a location where prevailing hourly rates are substantially lower than the forum rate. Id. at 1349 

(citing 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)). 
3 

present case would fall between $25,000.00 and $39,000.00, but provided no cases or support for 

this range. Id. 

 On October 13, 2016, Petitioner filed a reply. ECF No. 28 (“Reply”). Petitioner argued that 

counsel is in fact entitled to the forum rate, because the local rate is not very significantly different 

from the forum rate. Id. at 1-2. He also noted that any hourly rates Petitioner’s counsel had agreed 

to in the past were mostly the result of stipulation, and were therefore not a concession as to 

counsel’s reasonable hourly rate. Id. Petitioner took issue with the Western District of Tennessee 

cases, as well as the 2014 Real Rate Report, because the rates contained therein were not adjusted 

for inflation before comparing them to the 2015 forum rates, and thus were not an accurate 

reference for the local rate. Id. at 2-3. Further, Petitioner noted that Respondent made no attempt 

to show how the cited cases compared to the type of litigation and attorney experience in this 

matter. Id.

ANALYSIS 

The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). 

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the award on 

rates paid to similarly qualified attorneys in the forum in which the relevant court sits (Washington, 

DC, for Vaccine Act cases), except where an attorney’s work was not performed in the forum and 

there is a substantial difference in rates. Avera, 515 F.3d at 1348 (citing Davis Cty., 169 F.3d at 

758) (creating the Davis Cty. exception that determines when an attorney should receive local 

hourly rates instead of forum rates). The hourly rate ranges for attorneys of different levels of 

experience who are entitled to the forum rate in Vaccine Program cases are set forth in McCulloch 

v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323, at *19 (Fed. Cl. Spec. Mstr. 

Sept. 1, 2015).5

This matter was handled by several Black McLaren attorneys. For Mr. Michael McLaren’s 

work on this matter, Petitioner requests $395 per hour for work performed in 2014; $410 per hour 

for 2015 work; and $425 per hour for 2016 work. Fees App. at 9. For Mr. William Cochran Jr., 

Petitioner requests $335 per hour for 2014 work; $345 per hour for work performed in 2015; and 

$355 per hour for 2016. Id. For Mr. Chris Webb, Petitioner requests $285 per hour for 2014 work; 

$295 per hour for 2015; and $305 per hour for 2016. Id. Petitioner requests reimbursement for 

work performed by law clerks at the rate of $140 per hour for 2014; $145 per hour for 2015; and 

$150 per hour for 2016. Id. Finally, for paralegal work, Petitioner requests $130 per hour for 2014; 

$135 per hour for 2015; and $140 per hour for 2016. Id.

 

5

 The McCulloch forum rate ranges have recently been compiled into a list and posted to the Vaccine Claims section 

of the United States Court of Federal Claims website. The forum hourly rate fee schedule can be accessed at: 

http://www.uscfc.uscourts.gov/vaccine-programoffice-special-masters. 
4 

Attorneys located at Black McLaren have recently been found by other special masters to 

be entitled to forum hourly rates. See Henry v. Sec’y of Health & Human Servs., No. 15-545V, slip 

op. (Fed. Cl. Spec. Mstr. Nov. 4, 2016). In Henry, Chief Special Master Dorsey examined cases 

from the Western District of Tennessee to determine the appropriate local hourly rate for Memphis, 

as well as Black McLaren’s current local hourly rates for non-complex general litigation. See id. 

at 8-9. Those rates were then adjusted before comparing the Memphis hourly rates to the forum 

rates in DC. Id. at 8. Based on this examination, the special master found that the local rates were 

consistent with the forum rate ranges for 2015, and Black McLaren attorneys should receive forum 

rates. Id. at 12. 

I find the reasoning of Henry persuasive, and I will therefore adopt it herein in my fee 

award. It is thus appropriate to apply the McCulloch forum rate ranges to the work performed by 

Mr. McLaren, Mr. Cochran, Mr. Webb, and the law clerks and paralegals. 

According to Petitioner’s fees request, Mr. McLaren has over 40 years of experience. Fees 

App. at 16. The forum rate range for an attorney with more than 31 years of experience in practice 

for 2015-2016 is $385-$430. McCulloch, 2015 WL 5634323, at *19. Mr. Cochran has over 14 

years’ experience. Fees App. at 18. The forum rate range for an attorney with similar experience 

is $300-$375 per hour. McCulloch, 2015 WL 5634323, at *19. Mr. Webb has almost 9 years of 

experience. Fees App. at 21. The forum rate range for an attorney with 8 to 10 years’ experience 

is $275-$350 per hour. McCulloch, 2015 WL 5634323, at *19. The requested hourly rates above 

are thus within these applicable ranges, and will therefore be awarded. The requested rates are also 

in line with those recently awarded to Black McLaren attorneys. See Henry, No. 15-545V, at 12 

(awarding 2016 hourly rates of $425 to Mr. McLaren; $355 to Mr. Cochran; $305 to Mr. Webb; 

and $150 to paralegals). The requested rates for law clerks and paralegals are likewise consistent 

with McCulloch rates, and will not be adjusted. Id. at *21. 

The majority of the hours expended on this matter (123.5 hours in total) were also 

reasonable. The time it took to resolve the case was not unusually long, and was largely a result of 

the parties’ damages negotiations. Fees and costs associated with settlement are properly 

reimbursable. Thomas v. Sec’y of Health & Human Servs., No. 92-46V, 1997 WL 74664, at *7 

(Fed. Cl. Spec. Mstr. Feb. 3, 1997) (rejecting Respondent’s assertion that the fees and costs should 

necessarily be lower when a case settles without hearing). 

In addition, Respondent’s suggested range is not persuasive under these circumstances. 

Petitioner’s counsel promptly collected the majority of the necessary records in the year prior to 

filing the case, and after filing a few additional records that Respondent deemed necessary, 

Petitioner and Respondent agreed to enter into informal settlement negotiations. The overall 
5 

amount of hours spent on this case appears reasonable, and will not be reduced solely to fit a 

suggested range, especially absent other grounds for a reduction. 

Respondent’s only specific objection to any of the billing entries relates to counsel’s travel 

from Memphis to Virginia Beach to meet with Petitioner. Response at 12 n.13. Respondent alleged 

that the common practice in the Program is to compensate hours spent traveling at one-half the 

normal hourly rate. However, the fact that an attorney is traveling is not dispositive of how to treat 

such attorney time. See, e.g., King v. Sec’y of Health & Human Servs., No. 03-584V, 2009 WL 

2524564, at *4 (Fed. Cl. Spec. Mstr. July 27, 2009); Kuttner v. Sec’y of Health & Human Servs., 

No. 06-195V, 2009 WL 256447, at *10 (Fed. Cl. Spec. Mstr. Jan. 16, 2009). In some situations, 

an award of full attorney’s fees for travel is appropriate if sufficient documentation exists 

specifying the work performed while traveling. Gruber v. Sec’y of Health & Human Servs., 91 

Fed. Cl. 773, 791 (2010). 

Here, the billing invoices list two entries for traveling to and from a meeting with 

Petitioner, and one entry reflecting the actual time spent meeting with Petitioner on October 15, 

2015. ECF No. 25-2 at 6. While the common practice is to compensate this time at one-half the 

normal rate, these entries, along with Petitioner’s fees application, give sufficient documentation 

of the work performed while traveling. See id.; Fees App. at 10. The billing entries show that 

Petitioner’s counsel prepared for the meeting during the flight to Virginia Beach, and reviewed the 

meeting notes and developed a plan for completing damages valuation on the return flight. ECF 

No. 25-2 at 6. Further, Petitioner’s counsel affirmed that he habitually works on a case while 

traveling by plane, and did so in this matter. Fees App. at 10. Thus, the time entries sufficiently 

reflect work performed during the travel time and merit full compensation under Program 

standards. 

As noted above, Petitioner additionally requests an award of litigation costs for counsel of 

$6,764.26, reflecting payments for medical records, filing fees, and travel-related costs. ECF No. 

25-2 at 14; ECF No. 28-2 at 1-2. Respondent has offered no specific objections to these costs, and 

upon review of the record I find that they are reasonable. 

Accordingly, based on the reasonableness of Petitioner’s request, I hereby GRANT 

Petitioner’s Motion for attorney’s fees and costs. I award a total of $46,045.76 as a lump sum in 

the form of a check jointly payable to Petitioner and Petitioner’s counsel, Mr. William E. Cochran, 

Jr., Esq., representing $39,281.50 in attorney’s fees and $6,764.26 in costs. 
6 

The clerk of the Court shall enter judgment in accordance herewith.6

IT IS SO ORDERED. 

 /s/ Brian H. Corcoran

 Brian H. Corcoran 

 Special Master 

 

6

 Pursuant to Vaccine Rule 11(a), entry of judgment may be expedited by the parties= joint filing of notice renouncing 

the right to seek review.