In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

Filed: December 15, 2021

* * * * * * * * * * * * * * UNPUBLISHED

JOSE MONSALVEZ, *

*

Petitioner, * No. 17-1583V

* Special Master Oler

v. *

 * Attorneys’ Fees and Costs

SECRETARY OF HEALTH * 

AND HUMAN SERVICES, *

 *

 Respondent. *

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

Jessica A. Olins, Maglio Christopher and Toale, PA, Seattle, WA, for Petitioner.

Alexis B. Babcock, United States Department of Justice, Washington, DC, for Respondent.

DECISION ON ATTORNEYS’ FEES AND COSTS1

On October 20, 2017, Jose Monsalvez (“Petitioner”) filed a petition for compensation 

pursuant to the National Vaccine Injury Compensation Program2alleging that he suffered from

neuromuscular weakness and pain as a result of the influenza vaccination he received on October 

22, 2014. Pet. at 1. On July 20, 2021, the parties filed a stipulation, which the undersigned adopted 

as her decision awarding compensation on the same day. (ECF No. 65)

On October 18, 2021, Petitioner filed an application for final attorneys’ fees and costs. 

(ECF No. 69). (“Fees App.”). Petitioner requests total attorneys’ fees and costs in the amount of 

$42,846.96, representing $41,892.10 in attorneys’ fees and $954.86 in attorneys’ costs. Fees App. 

at 2. Pursuant to General Order No. 9, Petitioner states that he has not incurred any costs related 

to this litigation. Respondent responded to the motion on November 1, 2021, stating that 

1 The undersigned intends to post this Ruling on the United States Court of Federal Claims' website. This 

means the Ruling 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, the undersigned 

agrees that the identified material fits within this definition, the undersigned will redact such material from 

public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, 

the undersigned is required to post it on the United States Court of Federal Claims' website in accordance 

with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion 

of Electronic Government Services).

2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755.
2

“Respondent is satisfied the statutory requirements for an award of attorneys’ fees and costs are 

met in this case” and requesting that the undersigned “exercise her discretion and determine a 

reasonable award for attorneys’ fees and costs.” Resp’t’s Resp. at 2. (ECF No. 70). Petitioner filed 

his reply on November 5, 2021, reiterating his belief that the requested amount of fees and costs 

is reasonable. (ECF No. 71).

This matter is now ripe for consideration.

I. Reasonable Attorneys’ Fees and Costs

Section 15(e) (1) of the Vaccine Act allows for the Special Master to award “reasonable 

attorneys' fees, and other costs.” § 300aa–15(e)(1)(A)–(B). Petitioners are entitled to an award of 

reasonable attorneys' fees and costs if they are entitled to compensation under the Vaccine Act, or, 

even if they are unsuccessful, they are eligible so long as the Special Master finds that the petition 

was filed in good faith and with a reasonable basis. Avera v. Sec'y of Health & Human Servs., 515 

F.3d 1343, 1352 (Fed. Cir. 2008). Here, because Petitioner was awarded compensation pursuant 

to a stipulation, he is entitled to a final award of reasonable attorneys’ fees and costs.

It is “well within the special master's discretion” to determine the reasonableness of fees. 

Saxton v. Sec'y of Health & Human Servs., 3 F.3d 1517, 1521–22 (Fed. Cir. 1993); see also Hines 

v. Sec'y of Health & Human Servs., 22 Cl. Ct. 750, 753 (1991). (“[T]he reviewing court must grant 

the special master wide latitude in determining the reasonableness of both attorneys' fees and 

costs.”). Applications for attorneys' fees must include contemporaneous and specific billing 

records that indicate the work performed and the number of hours spent on said work. See Savin 

v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313, 316–18 (2008).

Reasonable hourly rates are determined by looking at the “prevailing market rate” in the 

relevant community. See Blum v. Stenson, 465 U.S. 886, 895 (1984). The “prevailing market rate” 

is akin to the rate “in the community for similar services by lawyers of reasonably comparable 

skill, experience and reputation.” Id. at 895, n.11. The petitioner bears the burden of providing 

adequate evidence to prove that the requested hourly rate is reasonable. Id.

a. Reasonable Hourly Rates

Petitioner requests the following rates of compensation for his attorneys: for Ms. Jessica 

Olins, $199.00 per hour for work performed in 2019, $225.00 per hour for work performed in 

2020, and $266.00 per hour for work performed in 2021; and for Mr. FJ Caldwell, $367.00 per 

hour for work performed in 2017, $385.00 per hour for work performed in 2018, and $400.00 per 

hour for work performed in 2019. These rates are consistent with what counsel have previously 

been awarded for their Vaccine Program work, and the undersigned finds them to be reasonable 

herein for work performed in the instant case.

b. Reasonable Hours Expended

Attorneys' fees are awarded for the “number of hours reasonably expended on the 

litigation.” Avera, 515 F.3d at 1348. Counsel should not include in their fee requests hours that are 
3

“excessive, redundant, or otherwise unnecessary.” Saxton, 3 F.3d at 1521 (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 434 (1983)). Additionally, it is well-established that billing for 

administrative/clerical tasks is not permitted in the Vaccine Program. Rochester v. United States, 

18 Cl. Ct. 379, 387 (1989); Arranga v. Sec’y of Health & Human Servs., No. 02-1616V, 2018 WL 

2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

 The overall hours spent on this matter appear to be reasonable. The undersigned has

reviewed the billing entries and finds that they adequately describe the work done on the case and 

the amount of time spent on that work. None of the entries appear objectionable, nor has 

Respondent identified any entries as objectionable. Accordingly, Petitioner is awarded final 

attorneys’ fees in the amount of $41,892.10.

c. Attorneys’ Costs

Like attorneys’ fees, a request for reimbursement of attorneys’ costs must be reasonable. 

Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests 

a total of $954.86 in attorneys’ costs. Fees App. Ex. 2. This amount is comprised of acquiring 

medical records, postage, and the Court’s filing fee. All of these costs are typical of Vaccine 

Program litigation and are reasonable in the undersigned’s experience. Petitioner has provided 

adequate documentation supporting the request. 

II. Conclusion

In accordance with the Vaccine Act, 42 U.S.C. § 300aa-15(e) (2012), the undersigned has 

reviewed the billing records and costs in this case and finds that Petitioner’s request for fees and 

costs is reasonable. The undersigned finds that it is reasonable to compensate Petitioner and his

counsel as follows:

Attorneys’ Fees Requested $41,892.10

(Reduction to Fees) -

Total Attorneys’ Fees Awarded $41,892.10

Attorneys’ Costs Requested $954.86

(Reduction to Costs) -

Total Attorneys’ Costs Awarded $954.86

Total Amount Awarded $42,846.96

Accordingly, the undersigned awards a lump sum in the amount of $42,846.96, 

representing reimbursement for reasonable attorneys’ fees and costs, in the form of a check 

payable jointly to Petitioner and Petitioner’s counsel of record, Ms. Jessica Olins, to be 

forwarded to Maglio Christopher and Toale, PA, 1605 Main Street, Suite 710, Sarasota 

Florida 34236.
4

In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the 

court shall enter judgment in accordance herewith.3

IT IS SO ORDERED.

s/ Katherine E. Oler

 Katherine E. Oler

Special Master

3 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. 

Vaccine Rule 11(a).