# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: December 15 , 2021

* * * * * * * * * * * * * * UNPUBLISHED

JOSE MONSALVEZ

, *

*
Petitioner, * No. 1 7

- 1583 V

* 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 P etitioner.

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

DECISION ON ATTORNEYS ’ FEES AND COSTS 1

On October 20, 2017

, Jose Monsalvez (“ P etitioner”) filed a petition for compensation pursuant to the National Vaccine Injury Compensation Program 2 alleging that he suffered from neuromuscular weakness and pain as a result of the influenza vaccination he received on October

2 2, 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

, P etitioner filed an application for final attor neys ’ fees and costs. ( ECF No. 69 ). (“Fees App.”). Petitioner requests total attorneys ’ fees and c osts in the amount of $ 42,846.96

, represen ting $ 41,892.10 in attorneys ’ fees and $ 9 54.86 in attorney s ’ 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 intend s to post this Ruling on the United States Court of Federal Claims' website. This

means the R uling 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 iden tified 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 Because this unpublished ruling contains a reasoned explanation for the action in this case,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 Sta tes 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, 10 0 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

h is reply on November 5 , 2021, reiterating h is 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 compens ation 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

rec ords 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

relevan t 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 bear s 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 h is attorney s: 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 ha ve 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 E xpended

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 are3

“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); Ar ranga v. Sec’y of Health & Human Servs. , No. 02

- 1616V, 2018 WL 2224959, at *3 (Fed. Cl. Spec. Mstr. Apr. 12, 2018).

T he overall h ours 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

R espondent identified any entries as objectionable. Accordingly, P et itioner 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). Petitione r requests

a total of $ 954.86 in attorneys ’ cost s

. 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 supp orting 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 P etitione r’s request for fees and

costs is reasonable. T he undersigned finds that it is reasonable to compensate P etitioner and h is

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 P etitioner and P etitioner’s counsel of record, M s. 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).