The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0668V
KATHLEEN KELEHER,
Chief Special Master Corcoran
Petitioner, Filed: July 30, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Joseph Alexander Vuckovich, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On January 12, 2021, Kathleen Keleher filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleged that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table Injury, following the administration of a tetanus,
diphtheria, acellular pertussis vaccine in her left deltoid on June 9, 2020. On December
19, 2024, I issued a decision awarding damages to Petitioner, following briefing by the
parties. ECF No. 57.
1Because this Decision contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or at
https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act of
2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Decision will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $69,998.67 (representing $68,534.50 for fees and $1,464.17 in attorney’s costs).
Petitioner’s Application for Attorneys’ Fees, filed Jan. 22, 2025, ECF No. 61. In
accordance with General Order No. 9, Petitioner filed a signed statement indicating that
she incurred no out-of-pocket expenses. ECF No. 61-3.
Respondent reacted to the motion on January 23, 2025, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met
in this case, but deferring resolution of the amount to be awarded to my discretion.
Respondent’s Response to Motion at 2-3, 3 n.2, ECF No. 62. The next day, Petitioner
filed a reply, reiterating her fees request. ECF No. 63.
Having considered the motion along with the invoices and other proof filed in
connection, I find a reduction in the amount of fees to be awarded appropriate, for the
reason set forth below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). 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
& Hum. 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 v.
Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Hum. Servs., 86 Fed.
Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Hum.
Servs., 102 Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Hum. Servs., 24 Cl.
Ct. 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees
and costs sought] at the time of the submission.” Wasson, 24 Cl. Ct. at 484 n.1.
2
Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley,
461 U.S. at 434.
ATTORNEY FEES
The rates requested for work performed through 2024 are reasonable and
consistent with our prior determinations, and will therefore be adopted. For work
performed by Mr. Vuckovich in 2025, Petitioner is requesting the hourly rate of $490.00,
representing an increase of $45.00 from the previous year. Although a larger increase
than I usually would approve, I find this 2025 rate is reasonable and within the OSM fee
schedule for attorneys with Mr. Vuckovich’s experience. Thus, I will award the requested
2025 rate.
Regarding the number of hours billed, I deem the total amount of time devoted to
briefing entitlement and damages to be excessive. See Status Report, filed July 13, 2023,
ECF No. 44 (reporting an impasse in the parties’ damages discussions); Petitioner’s
Motion for Findings of Fact and Conclusions of Law Regarding Damages, filed Sept. 11,
2023, ECF No. 47; Petitioner’s Reply Memorandum in Support of Motion for Findings of
Fact and Conclusions of Law Regarding Damages, filed Feb. 2, 2024, ECF No. 52.
Petitioner’s counsel expended approximately 19.1 hours drafting the damages briefing
and 19.8 hours drafting a reply, totaling 38.93 hours. ECF No. 61-1 at 23-25. And several
of the entries involved activity dedicated solely to preparing oral argument for an
expedited Motions Day hearing, despite this case not having been scheduled for any such
proceeding. ECF No. 61-1 at 24-25 (entries dated 11/10/23, 11/14/23, 11/15/23, 12/12/23,
and 12/13/23).
My above calculation does not include time spent preparing the initial demand
which would have informed this later work, and I am therefore awarding fees associated
with that task in full. ECF No. 61-1 at 12-18. Nor am I counting time spent communicating
with Petitioner and preparing additional supporting documentation such as affidavits or
signed declarations, which is also being awarded in full. See, e.g., id. at 23 (entries dated
9/21/24 and 9/24/24).
3 This total is calculated as follows: 23.0 hours billed on 9/6/23 through 12/13/23, by J. Vuckovich at a rate
of $415; and 15.9 hours billed on 1/3/24 through 2/2/24, by J. Vuckovich at a rate of $445. ECF No. 61-1
at 22-29.
3
It is unreasonable for counsel to spend so much time briefing the issue of damages
in this case, where the issues presented are not complex. I have identified numerous
cases (which may reasonably be compared to time spent in this matter), 4 in which
attorneys have accomplished this task in about half the time.5
4 Special masters may use comparisons to attorneys performing similar tasks to determine if hours are
excessive. See Saxton v. Sec’y of Health & Hum. Servs., 3 F.3d 1517, 1518-1521 (Fed. Cir. 1993).
5 See, e.g., Lang v. Sec’y of Health & Hum. Servs., No. 21-0972V (June 26, 2025) (12.3 and 7.6 hours
billed for drafting a damages brief and responsive damages brief, respectively); McClelland v. Sec’y of
Health & Hum. Servs., No. 24-0605V (June 24, 2025) (9.7 and 11.2 hours billed for drafting a damages
brief and responsive damages brief, respectively); Blanco v. Sec’y of Health & Hum. Servs., No. 22-0559V
(June 16, 2025) (4.2 and 8.0 hours billed for drafting a damages brief and responsive damages brief,
respectively); Moreno v. Sec’y of Health & Hum. Servs., No. 21-0433V (June 13, 2025) (7.3 and 4.0 hours
billed for drafting a damages brief and responsive damages brief, respectively); Boyd v. Sec’y of Health &
Hum. Servs., No. 21-0850V (June 13, 2025) (13.3 and 10.9 hours billed for drafting a damages brief and
responsive damages brief, respectively); Perez v. Sec’y of Health & Hum. Servs., No. 21-0746V (June 12,
2025) (13.4 and 5.1 hours billed for drafting a damages brief and responsive damages brief, respectively);
Cohen v. Sec’y of Health & Hum. Servs., No. 23-1060V (June 11, 2025) (8.5 and 4.6 hours billed for drafting
a damages brief and responsive damages brief, respectively); Shaw v. Sec’y of Health & Hum. Servs., No.
22-1348V (January 30, 2025) (9.7 and 5.9 hours billed for drafting a damages brief and responsive
damages brief, respectively); Phillips v. Sec’y of Health & Hum. Servs., No. 21-0076V (January 10, 2025)
(9.0 and 10.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Wirges
v. Sec’y of Health & Hum. Servs., No. 19-1670V (Dec. 27, 2024) (16.8 and 7.5 hours billed for drafting a
damages brief and responsive damages brief, respectively); Tracy v. Sec’y of Health & Hum. Servs., No.
20-1312V (Dec. 27, 2024) (12.5 and 5.1 hours billed for drafting a damages brief and responsive damages
brief, respectively); Tappendorf v. Sec’y of Health & Hum. Servs., No. 20-1592V (Dec. 27, 2024) (14.1and
7.9 hours billed for drafting a damages brief and responsive damages brief, respectively); Stolze v. Sec’y
of Health & Hum. Servs., No. 21-0964V (Nov. 22, 2024) (11.8 and 7.2 hours billed for drafting a damages
brief and responsive damages brief, respectively); Davidson v. Sec’y of Health & Hum. Servs., No. 20-
1617V (Nov. 22, 2024) (14.9 and 3.8 hours billed for drafting a damages brief and responsive damages
brief, respectively); M.F. v. Sec’y of Health & Hum. Servs., No. 21-0970V (Nov. Apr. 9, 2024) (13 and 7.8
hours billed for drafting a damages brief and responsive damages brief, respectively); Axelrod v. Sec’y of
Health & Hum. Servs., No. 21-0980V (Mar. 29, 2024) (11.9 and 12.5 hours billed for drafting a damages
brief and responsive damages brief, respectively); Benz v. Sec’y of Health & Hum. Servs., No. 21-1197V
(Mar. 26, 2024) (19.5 and 6.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Hansler-Point v. Sec’y of Health & Hum. Servs., No. 21-0045V (Mar. 26, 2024) (9.6 and 4.9
hours billed for drafting a damages brief and responsive damages brief, respectively); Dulaney v. Sec’y of
Health & Hum. Servs., No. 20-1488V (Mar. 26, 2024) (6.6 and 0.5 hours billed for drafting a damages brief
and responsive damages brief, respectively); Glanville v. Sec’y of Health & Hum. Servs., No. 19-1973V
(Mar. 26, 2024) (8.7 hours billed for drafting a damages brief); Stokes v. Sec’y of Health & Hum. Servs.,
No. 19-0752V (Feb. 29, 2024) (15.3 and 8.1 hours billed for drafting a damages brief and responsive
damages brief, respectively); Richardson v. Sec’y of Health & Hum. Servs., No. 20-0674V (Feb. 9, 2024)
(9.2 and 6.3 hours billed for drafting a damages brief and responsive damages brief, respectively); Edwards
v. Sec’y of Health & Hum. Servs., No. 21-0056V (Feb. 5, 2024) (11.3 and 7.2 hours billed for drafting a
damages brief and responsive damages brief, respectively); Villa v. Sec’y of Health & Hum. Servs., No. 20-
0569V (Feb. 5, 2024) (6.0 and 5.6 hours billed for drafting a damages brief and responsive damages brief,
respectively); Jackson v. Sec’y of Health & Hum. Servs., No. 20-0051V (Feb. 5, 2024) (15.4 and 7.7 hours
billed for drafting a damages brief and responsive damages brief, respectively); Mulloy v. Sec’y of Health
& Hum. Servs., No. 19-1396V (Nov. 6, 2023) (19.7 and 9.5 hours billed for drafting a damages brief and
responsive damages brief, respectively); Gao v. Sec’y of Health & Hum. Servs., No. 21-1884V (Oct. 25,
2023) (16.5 and 9.4 hours billed for drafting a damages brief and responsive damages brief, respectively);
4
Of course, having prevailed in this case, a fees award is generally appropriate.
Keleher v. Sec’y of Health & Hum. Servs., No. 21-0668V, 2024 WL 5360902 (Fed. Cl.
Spec. Mstr. Dec. 19, 2024) (also found at ECF No. 57). And my award of a past pain and
suffering award of $180,000.00, much closer to the $205,000.00 proposed by Petitioner,
supports the need for briefing in this case. Id. at *4, 6. But the Act permits only an award
of a reasonable amount of attorney’s fees. Accordingly, I will reduce the sum to be
awarded for entitlement damages briefing (a total of 38.9 hours, or $16,620.50) by thirty
percent. Such an across-the-board reduction (which I am empowered to adopt)6 fairly
captures the overbilling evidenced by this work, without requiring me to act as a “green
eye-shaded accountant” in identifying with specificity each objectionable task relevant to
this one sub-area of work performed on the case. This results in a reduction of
$4,986.15.7
Knasel v. Sec’y of Health & Hum. Servs., No. 20-1366V (Oct. 25, 2023) (11.5 and 13.6 hours billed for
drafting a damages brief and responsive damages brief, respectively); Langdon v. Sec’y of Health & Hum.
Servs., No. 20-1311V (Oct. 25, 2023) (12.5 and 12.8 hours billed for drafting a damages brief and
responsive damages brief, respectively); Mantagas v. Sec’y of Health & Hum. Servs., No. 20-1720V (Oct.
17, 2023) (6.7 and 4.2 hours billed for drafting a damages brief and responsive damages brief, respectively);
Majerus v. Sec’y of Health & Hum. Servs., No. 20-1346V (Oct. 17, 2023) (11.0 and 4.6 hours billed for
drafting a damages brief and responsive damages brief, respectively); Cosden v. Sec’y of Health & Hum.
Servs., No. 20-1783 (Aug. 8, 2023) (6.3 hours billed for drafting a damages brief); Balch v. Sec’y of Health
& Hum. Servs., No. 20-0872V (June 30, 2023) (18.7 hours billed for drafting a damages brief); Kestner v.
Sec’y of Health & Hum. Servs., No. 20-0025V (June 22, 2023) (6.00 and 4.10 hours billed for drafting a
damages brief and responsive damages brief, respectively); Juno v. Sec’y of Health & Hum. Servs., No.
18-0643V (June 14, 2023) (5.8 hours billed for drafting a damages brief); Deutsch v. Sec’y of Health &
Hum. Servs., No. 18-0527V (June 12, 2023) (7.4 and 4.4 hours billed for drafting a damages brief and
responsive damages brief, respectively); Edminister v. Sec’y of Health & Hum. Servs., No. 19-0184V (May
30, 2023) (15.3 and 3.5 hours billed for drafting a damages brief and responsive damages brief,
respectively); Aponte v. Sec’y of Health & Hum. Servs., No. 20-1031V (May 18, 2023) (6.9 hours billed for
drafting a damages brief); Gray v. Sec’y of Health & Hum. Servs., No. 20-1708V (May 18, 2023) (5 hours
billed for drafting a damages brief); Horky v. Sec’y of Health & Hum. Servs., No. 20-0239V (May 18, 2023)
(5.8 hours billed for drafting a damages brief); Thomson v. Sec’y of Health & Hum. Servs., No. 22-0234V
(May 18, 2023) (9.5 and 2.5 hours billed for drafting a damages brief and responsive damages brief,
respectively); Rice-Hansen v. Sec’y of Health & Hum. Servs., No. 20-1338V (May 17, 2023) (12.9 and 6.1
hours billed for drafting a damages brief and responsive damages brief, respectively). These decisions can
(or will) be found on the United States Court of Federal Claims website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc (last visited August 4, 2024).
6 Special masters are permitted to employ percentage reductions to hours billed, provided the reduction is
sufficiently explained. See, e.g., Abbott v. Sec’y of Health & Hum. Servs., 135 Fed. Cl. 107, 111 (2017);
Raymo v. Sec’y of Health & Hum. Servs, 129 Fed. Cl. 691, 702-704 (2016); Sabella v. Sec’y of Health &
Hum. Servs., 86 Fed. Cl. 201, 214 (2009).
7 This amount is calculated as follows: (23.0 hrs. x $415 x .30) + (15.9 x $445 x .30) = $4,986.15.
5
ATTORNEY COSTS
Furthermore, Petitioner has provided supporting documentation for all claimed
costs. ECF No. 61-2. And Respondent offered no specific objection to the rates or
amounts sought. ECF No. 62. I have reviewed the requested costs and find them to be
reasonable.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for
attorney’s fees and costs. I award a total of $65,012.52 (representing $63,548.35 for
fees and $1,464.17 in attorney’s costs) to be paid through an ACH deposit to
Petitioner’s counsel’s IOLTA account for prompt disbursement. In the absence of a
timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk of
Court shall enter judgment in accordance with this Decision.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
6