    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-623V
                                     Filed: February 1, 2017

* * * * * * * *                  *    *   * * *
SAMUEL V. DARROCH,                          *
                                            *            UNPUBLISHED
                     Petitioner,            *
                                            *            Special Master Gowen
v.                                          *
                                            *            Attorneys’ Fees and Costs
SECRETARY OF HEALTH                         *
AND HUMAN SERVICES,                         *
                                            *
                     Respondent.            *
                                            *
* * * * * * * * * * * * *
William E. Cochran, Jr., Black McLaren, et al., PC, Memphis, TN, for petitioner.
Althea W. Davis, United States Department of Justice, Washington, DC, for respondent.

                       DECISION ON ATTORNEYS' FEES AND COSTS1

        On June 18, 2015, Samuel Darroch (“petitioner”) filed a petition pursuant to the National
Vaccine Injury Compensation Program. 42 U.S.C. §§ 300aa-10 to 34 (2012). Petitioner alleged
that he suffered seizures as a result of receiving a tetanus vaccination. Petition at 1-2. On
November 1, 2016, petitioner moved for a decision dismissing his petition, and a decision
dismissing the petition for insufficient proof was issued November 3, 2016.

         On January 11, 2017, petitioner filed an application for attorneys’ fees and costs,
requesting $19,766.50 in attorneys’ fees, $3,867.16 in attorneys’ costs, and $604.10 in
petitioner’s costs, for a total of $24,237.76 in attorneys’ fees and costs. Petitioner’s (“Pet.”)
Application (“App.”) at 1; Pet. App., Ex. 3. Respondent filed a response to petitioner’s
application on January 26, 2017, stating that respondent “is satisfied the statutory requirements
for an award of attorneys’ fees and costs are met in this case,” and that respondent “recommends


1
  Because this decision contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this ruling on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). As provided by 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).


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that the special master exercise his discretion and determine a reasonable award for attorneys’
fees and costs.” Respondent’s Response at 2-3.

  I.   Reasonable Attorneys’ Fees and Costs

        Section 15(e) of the Vaccine Act governs attorneys’ fees. 42 U.S.C. § 300aa-15(e).
When awarding compensation on a petition, the special master “shall also award” reasonable
attorneys’ fees and costs. Id. at §15(e)(1)(A)-(B). Even when compensation is not awarded, the
special master “may award” reasonable attorneys’ fees and costs “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for the
claim for which the petition was brought.” Id. at § 15(e)(1). Respondent states that she “is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this
case,” and the undersigned finds that the case was brought in good faith and with a reasonable
basis, and will award attorneys’ fees and costs. Respondent’s Response at 2.

         The Federal Circuit has approved use of the lodestar approach to determine reasonable
attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515
F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an
initial estimate of a reasonable attorneys’ fee by ‘multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v.
Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward
departure from the initial calculation of the fee award based on other specific findings. Id. at
1348. Under the Vaccine Act, a reasonable hourly rate is “the prevailing market rate defined as
the rate prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Avera, 515 F.3d at 1347–48. In determining an award of
attorneys' fees, a court should generally use the forum rate, i.e., the District of Columbia rate. Id.
at 1348. However, an exception to the forum rule applies where the bulk of an attorney's work is
performed outside of the forum, and where there is a “very significant” difference in
compensation rates between the place where the work was performed and the forum. Id. at 1349
(citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States
Envtl. Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)).

        Counsel must submit fee requests that include contemporaneous and specific billing
records indicating the service performed, the number of hours expended on the service, and the
name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85
Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are
“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). The requirement that attorneys’ fees be reasonable also
applies to costs. McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *5 (Fed. Cl. Spec. Mstr. Sept. 1, 2015) (citing Perreira v. Sec’y of Health & Human
Servs., 27 Fed. Cl. 29, 34 (1992)). The determination of reasonable attorneys’ fees and costs is
within the special master's discretion. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517,
1520 (Fed. Cir. 1993). Special masters may rely on their prior experience in reviewing fee
applications. See id., 3 F.3d at 1521 (citing Farrar v. Sec’y of Health & Human Servs., No. 90-
1167V, 1992 WL 336502, at *2-3 (Fed. Cl. Spec. Mstr. Nov. 2, 1992)).



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          i.      Hourly Rates

       Petitioner requests the following rates:

       Michael McLaren:
             $410 (2015)
             $425 (2016)

       William Cochran:
              $345 (2015)
              $355 (2016)

       Chris Webb:
              $295 (2015)
              $305 (2016)

       Law Clerks:
             $145 (2015)
             $150 (2016)

       Paralegals:
              $135 (2015)
              $140 (2016)

Pet. App. at 9.

        The issue of whether Black McLaren attorneys are entitled to local or forum rates was
recently decided by Chief Special Master Dorsey. Henry v. Sec’y of Health & Human Servs.,
No. 15-545V, 2016 WL 7189925 (Fed. Cl. Spec. Mstr. Nov. 4, 2016. In Henry, the Chief
Special Master held that the Black McLaren firm should receive attorneys’ fees at forum rates,
noting that “[t]he applicable 2016 local attorney rates identified within this decision ($350, $300,
$260) range from about 17-21% lower than the requested forum rates for the same attorney.
This difference is much closer to the 18.5% differential identified in Garrison than it is to any of
the fee differentials discussed in the applicable circuit precedents, which considered differentials
of 59% and upward.” Id. at *10 (referencing Garrison v. Sec’y of Health & Human Servs., No.
14-762V, 2016 WL 3022076 (Fed. Cl. Spec. Mstr. Apr. 29, 2016), aff’d, 2016 WL 4784054
(Fed. Cl. Aug. 17, 2016). Several Special Masters have adopted the reasoning set forth in Henry
and have granted McLaren Black fees at the same hourly rates awarded therein. See e.g.
Rowden v. Sec’y of Health & Human Servs., No. 14-400V, 2016 WL 7785616 (Fed. Cl. Spec.
Mstr. Dec. 22, 2016)(Special Master Roth finding Black McLaren entitled to forum rates,
adopting reasoning in Henry); Pancoast v. Sec’y of Health & Human Servs., No. 15-718V, 2016
WL 7574815 (Fed. Cl. Spec. Mstr. Nov. 16, 2016) (Special Master Corcoran finding Black
McLaren entitled to forum rates, adopting reasoning in Henry). The undersigned likewise agrees
with Chief Special Master Dorsey’s analysis in Henry, and finds that petitioner has amply
demonstrated that the local rates in Memphis are not very significantly different than the forum



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rates in Washington, D.C. The rates requested in this case are consistent with the rates awarded
in Henry, and the undersigned will award them as requested.

           ii.   Hours Expended

        Petitioner requests compensation for 9.70 hours of work performed by Mr. McLaren,
26.10 hours of work performed by Mr. Cochran, 2.10 hours of work performed by associate
Chris Webb, 7.20 hours of work performed by paralegal Carmen Garcia, and 31.30 hours of
work performed by paralegal Samantha Ward. Pet. App., Ex. 2, at 12. On review of petitioner’s
billing record, the undersigned finds the number of hours expended reasonable.

          iii.   Costs

        Petitioner requests $3,867.16 in attorneys’ costs. Pet. App. at 1; Pet. App., Ex. 2 at 13.
The requested costs consist primarily of costs of obtaining medical records and the cost of an
expert report. Pet. App., Ex. 2 at 13-32. The undersigned finds the requested attorneys’ costs
reasonable.

        Petitioner requests $604.10 in petitioner’s costs. See Pet. App., Ex. 3 at 1. These costs
include the cost of ordering the transcript of the initial status conference, held while petitioner
was proceeding pro se at the outset of his case. Id. at 2. The remaining $400 requested appears
to be the filing fee incurred during petitioner’s pro se period, as docket entry number one
indicates the filing fee of $400 was paid at the time the petition was filed, receipt number CFC
100000950. The undersigned finds the requested petitioner’s costs reasonable.


    II.   Conclusion

        Upon review of the documentation of the requested attorneys’ fees and costs, and based
on his experience with the Vaccine Act and its attorneys, the undersigned finds a total attorneys’
fees and costs award of $24,237.76 reasonable.

       Pursuant to 42 U.S.C. § 300aa-15(e), the undersigned awards attorneys’ fees and costs as
follows:2

             (1) A lump sum of $23,633.66 in the form of a check payable jointly to petitioner
                 and petitioner’s attorney, William E. Cochran, Jr., Black McLaren, et al.,
                 PC, for attorneys’ fees and costs; and

             (2) A lump sum of $604.10 payable to petitioner for petitioner’s costs.

2
  This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services
rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or collecting fees (including costs)
that would be in addition to the amount awarded herein. See generally Beck v. Sec’y of Health & Human
Servs., 924 F.2d 1029 (Fed. Cir.1991).


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       In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court is directed to enter judgment forthwith.3

    IT IS SO ORDERED.


                                               s/ Thomas L. Gowen
                                               Thomas L. Gowen
                                               Special Master




3
  Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice
renouncing the right to seek review.
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