CASEY v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-1483V
TERRY CASEY,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Chief Special Master Corcoran
Filed: December 17, 2025
Richard Christian Macke, R. Christian Macke, Newport, KY, for Petitioner.
Dorian Hurley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS1
On October 11, 2022, Terry Casey 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 shoulder injury related to vaccine
administration or, in the alternative, a recurring right upper arm abscess, resulting from
an influenza vaccine received on October 10, 2019. Petition, ECF No. 1. On September
18, 2024, I issued a decision awarding compensation to Petitioner based on the parties’
stipulation. ECF No. 47.
1
Because 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
inf ormation, 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 f rom 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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2018).
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Petitioner has now filed a motion for attorney’s fees and costs, requesting an award
of $103,970.00 in attorney’s fees, consisting of 185.00 hours billed by attorney Richard
Macke at the hourly rate of $562.00. Petitioner’s counsel did not submit a request for
litigation 	costs or any evidence that 	any out-of-pocket expenses were incurred 	by
Petitioner in this matter. See Application for Attorneys’ Fees and Costs (“Motion”) filed
April 22, 2025, ECF No. 51.
Respondent reacted to the Motion on May 6, 2025, stating that he is satisfied the
statutory requirements for an award of attorneys’ fees and costs are met in this case, but
deferring resolution 	of the amount to be awarded to my discretion. Respondent also
noted, however, that he considers the total hours claimed by counsel excessive, and that
counsel’s Kentucky location made application of forum rates inappropriate. ECF No. 52
at 2-5. Petitioner filed a reply on May 7, 2025, wherein he adjusted his hourly rate to the
lesser 	amount of $500.00, 	and reduced his total number of hours billed 	to 180.70,
reflecting an amended request for final attorney’s fees in the total amount of $90,350.00.
ECF No. 53.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate, for the reasons set forth below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. 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 & 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 v. Sec’y of Health & Human 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 & Human 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 & Human Servs., 102 Fed. Cl. 719, 729 (2011).
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The petitioner “bears the burden of establishing 	the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human 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.
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
A. Hourly Rates
Petitioner’s counsel, Mr. Richard C. Macke, is requesting the hourly rate of $500.00
for work performed in the 2020-25 	timeframe. While lower than what was originally
requested, the rate requires further evaluation and adjustment.
Mr. Macke practices in Covington, Kentucky and has been licensed since 1992.
He was admitted to this Court in 2014. ECF No. 51 at 2. Based on the OSM Fee
Schedules, Mr. Macke is eligible for rates in the range of attorneys with 20 - 30 years of
experience for work performed in the 2020-22 timeframe,3 and the range of attorneys with
31+ years of experience for all work performed in subsequent years. I incorporate by
reference all of the explanatory notes contained in the Fee Schedules. 	The rate of
$500.00 	would therefore exceed his applicable 	experience 	ranges based 	on these
schedules for the 2020-22 timeframe. 	It would also be improper to award a rate on the
higher 	end of the 	experience ranges, 	when those 	rates are reserved 	for Program
attorneys with demonstrated experience handling Vaccine Act matters.
In addition, although Mr. Macke has significant experience as a licensed attorney
and as part of the Program, this matter appears to be only Counsel’s second case to
reach the fees stage. And Mr. Macke has yet to receive established hourly rates for his
work in the Program. I note that experience handling Vaccine Act cases is highly relevant
to what hourly rates an attorney should receive. See McCulloch v. Sec'y of Health and
Human Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl. Spec. Mstr. Sept. 1,
2015) (stating the following factors are paramount in deciding a reasonable forum hourly
3 The Vaccine Program’s Attorney’s Forum Hourly Rate Fee Schedules are available on the U.S. Court of
Federal Claim’s website: https://www.uscfc.uscourts.gov/osm-attorneys-forum-hourly-rate-fee-schedules
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rate: experience in the Vaccine Program, overall legal experience, the quality of work
performed, and the reputation in the legal community and community at large).
Thus, 	based 	on my experience 	and 	judgment 	applying 	the factors relevant 	to
determining reasonable hourly rates, I hereby award Mr. Macke the following: $400.00
for 2020; $420.00 for 2021; $440.00 for 2022; $460.00 for 2023; $480.00 for 2024; and
$500.00 for 2025. These rates represent a more reasonable annual increase and account
for his overall experience and quality of work performed. Application of the foregoing
reduces the amount of fees to be awarded herein by $10,072.00.4
B. Administrative Tasks and Block Billing
A review of the billing records reveal several charges for non-compensable 	work
and/or tasks considered administrative in nature, some of which are grouped together
with billable tasks, making it difficult to decipher the amount of time spent on each task.5
In the Vaccine Program, block-billing (billing large amounts of time without sufficient
detail as to what tasks were performed, and how much time was expended on each
individual task) is clearly disfavored. See Broekelschen v. Sec’y of Health & Hum. Servs.,
2008 U.S. Claims LEXIS 399, at *13-14 (Fed. Cl. Spec. Mstr. Dec. 17, 2008) (reducing
4 This amount consists of reducing Mr. Macke’s hourly rates f or 2020-24 and is calculated as f ollows:
($500.00 - $400.00 = $100.00 x 12.20 hours billed in 2020) + ($500.00 - $420.00 = $80.00 x 26.80 hours
billed in 2021) + ($500.00 - $440.00 = $60.00 x 78.10 hours billed in 2022) + ($500.00 - $460.00 = $40.00
x 38.30 hours billed in 2023) + ($500.00 - $480.00 = $20.00 x 24.50 hours billed in 2024) = $10,072.00 in
f ees to be reduced.
5 Tasks considered administrative and thus, non-compensable include faxing documents, filing documents
via CM/ECF, bate-stamping exhibits, organizing medical records for f iling, reviewing and/or paying invoices,
and researching basic aspects of the Vaccine Program. This is not a comprehensive list of tasks that can
be deemed non-compensable in the Program. The f ollowing are examples of administrative work charged
by Mr. Macke, some of which are improperly block-billed with attorney or paralegal level work: 6/3/21:
“Research regarding threatened removal of SIRVA from table (1.10 hrs.).” 7/6/22: “Lengthy review of entire
record on DVDs, identification and generation of hard copies of important pages, prepare affidavit for Terry
signature (5.0 hrs.).” 9/12/22: “Initial PAR work up, review updates to VICP rules, including shoulder injury,
related to vaccine administration rule, annotate records f or petition and ref erence, detail review, f inalize,
review petition (4.0 hrs.).” 9/13/22: “Continue draft PAR work up, identify record events for Petition, review
updates to VICP rules, including shoulder injury, detail review, revise petition (3.3 hrs.).” 10/9/22 (four
entries): “Telephone calls to pacer and court regarding electronic f iling helpdesk, old registration, not
working, new registration pending, unable to access system (2.3 hrs.); Telephone call to Joe Taylor
regarding e-f iling without access to Pacer (0.5 hrs.); Telephone conf erence to vaccine administration
helpdesk regarding electronic f iling (0.3 hrs.); 	Review RCFC rules in detail regarding f ormat, service,
electronic f iling, tips f or f iling, holidays, extensions of time (1.8 hrs.); Review paper document f iling
procedures because pacer is not working (1.0 hrs.).” 10/11/22: “File documents electronically (2.8 hrs.).”
See ECF No. 51-1 at 4-10 and ECF No. 53-1 at 4-10.
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petitioner’s attorneys’ fees for block-billing); see also Jeffries v. Sec’y of Health & Hum.
Servs., 2006 U.S. Claims LEXIS 411, at *8 (Fed Cl. Spec. Mstr. Dec. 15, 2006); Plott v.
Sec’y of Health & Hum. Servs., 1997 U.S. Claims LEXIS 313, at *5 (Fed. Cl. Spec. Mstr.
Apr. 23, 1997). Indeed, the Vaccine Program’s Guidelines for Practice state that “[e]ach
task should have its own line entry indicating the amount of time spent on that task.”6
Counsel is admonished that tasks should be billed in increments of one-tenth of an hour
since several tasks lumped together in one-time entry frustrates the Court’s ability to
assess the reasonableness of the request.
Additionally, secretarial or administrative tasks should not be billed at all, regardless
of who performs such task. See, e.g., McCulloch, 2015 WL 5634323, at *26. It is well
established 	that billing 	for clerical and other secretarial work is not permitted in the
Vaccine Program. See, e.g., Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989) (noting that
tasks “primarily of a secretarial and clerical nature ... should be considered as normal
overhead office costs included within the attorneys’ fee rates.”). See Mostovoy v. Sec’y
of Health & Hum. Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb.
4, 2016); Bennett v. Dep’t of Navy, 699 F.2d 1140, 1145 n.5 (Fed. Cir. 1983). See also
Floyd v. Sec'y of Health & Human Servs., No. 13-556V, 2017 WL 1344623, at *5 (Fed.
Cl. Spec. Mstr. Mar. 2, 2017).
Likewise, “it is inappropriate for counsel to bill time for educating themselves about
basic aspects of the Vaccine Program,” and this prohibition 	includes any cost of bar
admission, and any research related thereto. See Matthews v. Sec’y of Health & Human
Servs., No. 14-1111V, 2016 WL 2853910, at *2 (Fed. Cl. Spec. Mstr. Apr. 18, 2016).
Special Masters have held that “an inexperienced attorney may not ethically bill his client
to learn about an area of law in which he is unfamiliar. If an attorney may not bill his client
for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y of
Health & Human Servs., No. 04-1500V, 2007 WL 2241877, at *5 (Fed. Cl. Spec. Mstr.
July 13, 2007).
C. Paralegal Tasks Improperly Billed by Attorney
I have also identified many tasks considered to be paralegal 	in nature that were
improperly billed at the attorney’s hourly rate. Worse, many of these entries are block-
billed with attorney level work, making difficult to decipher the amount of time spent on
6 See Guidelines f or Practice at 76:
https://www.uscfc.uscourts.gov/guidelines-practice-under-national-vaccine-injury-compensation-program
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each individual task.7 Counsel should 	note that “[t]asks that can be completed by a
paralegal or a legal assistant should not be billed at an attorney’s rate.” See Riggins v.
Sec’y of Health & Human. Servs., No. 99-382V, 2009 WL 3319818, at *21 (Fed. Cl. Spec.
Mstr. June 15, 2009). Turpin v. Sec’y of Health & Human. Servs., No. 99-535, 2008 WL
5747914, 	at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). Indeed, 	Attorneys may be
compensated for paralegal-level work, but only at a rate that is comparable to that of a
paralegal. See, e.g. Doe/11 v. Sec’y of Health & Human. Servs., No. XX-XXXV, 2010 WL
529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S.
274, 288 (1989)); Mostovoy v. Sec’y of Health & Human. Servs., No. 02-10V, 2016 WL
720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016). Accordingly, Counsel must ensure to
apply paralegal forum rates based on the fee schedules cited supra, for each year he
performs paralegal-level work in Program matters.
D. Excessive Charges
Besides the above, the fees award must also be reduced due to excessive time
expended in review of electronic filing notifications and/or reviewing routine scheduling
orders. The invoices show that Mr. Macke billed a total of 12.90 hours on such tasks
alone, at the rate of $500.00, and that several of these entries were charged in increments
of over eighteen minutes. Many of the scheduling orders issued in this matter were for
non-pdf 	docket entries or otherwise 	merely one-page 	in length, 	however, thus not
requiring over 10-minutes of review by Counsel. And I did not include in this calculation
hours billed 	for the review of extensive 	documents such as the PAR initial 	order,
stipulations or status reports. Special Masters have previously reduced attorney fees for
such types of excessive billing. See Ericzon v. Sec'y of Health & Human Servs., No. 10-
7 Tasks considered paralegal in nature include draf ting and revising exhibit lists and other routine
documents such as PAR questionnaire, notices of f iling exhibits, cover sheets, statements of completion,
draf ting requests f or medical records and f ollowing up on medical records requests. The f ollowing billing
entries charged by Mr. Macke ref lect paralegal work, some of which are block-billed with attorney level
work: 10/6/21: “Telephone conf erence with doctor of fices, staff and billing departments re: record
authentication and authorizations f orms (2.2 hrs.).” 10/8/21: “Procure certified copies of medical records,
letters to St. Elizabeth, vascular surgeon, St. Elizabeth Family Physicians, Vascular Surgery, St. Elizabeth
Hospital, continue working on petition (1.5 hrs.).” 7/27/22: “Draft, revise, f inalize and f ax letters regarding
St. Elizabeth Vascular Surgery records (0.5 hrs.).” 7/28/22: “Draft and fax medical records requests for Dr.
Durrani, Dr. Eldridge offices, certified record requests (1.2 hrs.).” 7/29/22: “Resend January 7, 2021 letter
to Dr. Eldridge regarding timeline (0.3 hrs.).” 9/26/22: “Draf t PAR questionnaire, create chronology with
records ref erences, compliant with VICP rules, continue petition (4.0 hrs.).” 10/5/22 (two entries): “Draft
letter to Dawn at Saint Elizabeth regarding rush records (0.5 hrs.); Supplement requests for Saint Elizabeth
hospital records and certified records…(1.0 hrs.).” 10/7/22: “Prepare exhibits plus cover sheets, including
certif ications…(13.00 hrs.).” 10/21/22; 10/28/22; 11/5/22; 11/24/22; 3/2/23; 4/6/23 (two entries); 5/5/23 (two
entries); 8/29/23; 9/7/23; 9/8/23; 11/29/23; 3/13/24; 12/2/24. See ECF No. 53-1.
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103V, 2016 WL 447770 (Fed. Cl. Spec. Mstr. Jan. 15, 2016) (reduced overall fee award
by 10 percent due to excessive and duplicative billing); Raymo v. Sec'y of Health &
Human Servs., No. 11-654V, 2016 WL 7212323 (Fed. Cl. Spec. Mstr. Nov. 2, 2016)
(reduced overall fee award by 20 percent), mot. for rev. denied, 129 Fed. Cl. 691 (2016).
Special masters can reduce a fee request sua sponte, without providing petitioners notice
and opportunity to respond. See Sabella v. Sec'y of Health & Human Servs., 102 Fed. Cl.
719, 729 (2011).
E. Summary of Fees Reduction
Attorneys' fees are awarded for the number of hours reasonably expended on the
litigation. See Avera v. Sec'y of Health & Hum. Servs., 515 F.3d 1343, 1347 (Fed. Cir.
2008). Because Petitioner succeeded in this matter, her entitlement to fees cannot be
disputed – but the fees incurred must still be reasonable. Here, the overall fees sought
are egregiously 	high, especially compared to SPU cases generally. Indeed, the fees
sought exceed Petitioner’s recovery by more than fifty thousand dollars – for a kind of
claim that did not pose thorny legal or medical issues. And as discussed above, the billing
records reveal a number of exorbitant billing practices compounding the high fees claimed
in this matter, and demonstrating Counsel’s inexperience representing Petitioners in the
Program. Counsel must in the future ensure not to bill sums to a matter where the disparity
between time expended by counsel and the Petitioner’s award is so readily evident.
Special Masters have discretion to, “reduce the hours to a number that, in [his]
experience and judgment, [are] reasonable for the work done.” Saxton ex rel. Saxton v.
Sec'y of Health & Hum. Servs., 3 F.3d 1517, 1522 (Fed. Cir. 1993). In exercising that
discretion, special masters may reduce the number of hours submitted by a percentage
of the amount charged, rather than engage 	in a line-by-line 	review of the invoices
submitted. See Broekelschen v. Sec'y of Health & Hum. Servs., 102 Fed. Cl. 719, 728-
29 (2011) (affirming the special master's reduction of attorney and paralegal hours); Guy
v. Sec'y of Health & Hum. Servs., 38 Fed. Cl. 403, 406 (1997) (affirming the special
master's reduction of attorney and paralegal hours). In determining reasonable hours, a
special master has discretion to exclude hours expended that are “’excessive, redundant,
or otherwise unnecessary’” based on his or her experience or judgment.” Hocraffer v.
Health & Hum. Servs., No. 99-533V, 2011 WL 6292218, at *3 (Fed. Cl. Nov. 22, 2011).
Here, such an overall percentage cut is reasonable given the exorbitant fees claimed
and the aforementioned issues. Accordingly, I hereby reduce the total fees to be awarded
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herein by forty percent as a fair adjustment. Application of the foregoing reduces the total
amount of fees to be awarded herein by an additional $32,111.20.8
LITIGATION COSTS
Petitioner’s counsel did not request reimbursement of any litigation costs and/or out-
of-pocket expenses incurred herein. See ECF Nos. 51 and 53. Thus, no evaluation of
costs is warranted.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs for
successful claimants. Section 15(e). Accordingly, I hereby GRANT, in part, Petitioner’s
Motion for attorney’s fees and costs. Petitioner is awarded attorney’s fees and costs
in the total amount of $48,166.809 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.10
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 This amount is calculated as f ollows: ($90,350.00 - $10,072.00) = $80,278.00 x 0.40% = $32,111.20.
Thus, the overall f ees reduction consists of: ($80,278.00 - $32,111.20) = $48,166.80 in total f ees to be
awarded herein.
9 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 f ees f or 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).
10 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by f iling a joint notice
renouncing their right to seek review.
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