In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1055V

(not to be published)

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

ROSA MONZON, *

*

Petitioner, * Chief Special Master Corcoran

*

v. *

* Filed: January 14, 2022

SECRETARY OF HEALTH AND *

HUMAN SERVICES, *

*

Respondent. *

*

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

Joseph Vuckovich, Maglio Christopher & Toale, P.A., Washington, DC, for Petitioner

Dhairya Jani, U.S. Dep’t of Justice, Washington, DC, for Respondent

DECISION GRANTING IN PART ATTORNEY’S FEES AND COSTS1

On August 4, 2017, Rosa Monzon filed a petition seeking compensation under the National 

Vaccine Injury Compensation Program (the “Vaccine Program”).2 The Petition alleged that Ms. 

Monzon develop polymyalgia rheumatica (“PMR”) after receipt of the tetanus diphtheriaacellular-pertussis (“Tdap”) vaccine on April 12, 2016. See Petition (“Pet.”) at 2. Petitioner’s 

diagnosis was subsequently changed to rheumatoid arthritis (“RA”), and RA was the asserted 

injury in this case. Ex. 13 at 2; Petitioner’s Prehearing Brief at 1. An Entitlement Decision was 

filed on June 2, 2021, finding that Petitioner did not meet her burden in showing by a 

1 Because this Decision contains a reasoned explanation for my actions in this case, it must be posted on the United 

States Court of Federal Claims website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). 

As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain 

kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen 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). Otherwise, the whole Decision will 

be available to the public. Id.

2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 

100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). 

Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
2

preponderance of evidence that Petitioner likely experienced RA, that the Tdap vaccine could 

cause RA, or that it did so in this case. Decision, dated June 2, 2021, at 1–2 (ECF No. 52) 

(“Decision”). The Decision was not appealed, and judgment has entered in the case.

Petitioner has now filed a motion for a final award of attorney’s fees and costs. Motion, 

dated December 30, 2021 (ECF No. 56). Petitioner requests a total of $156,691.18 in attorney’s 

fees and costs for the work of four attorneys and fifteen paralegals at Maglio Christopher & Toale, 

P.A., performed between June 2016 and December 2021. ECF No. 56-1 at 61–62. Respondent 

reacted to the fees request on January 6, 2022. See Response, January 6, 2022 (ECF No. 57). 

Respondent is satisfied the statutory requirements for an award of fees and costs have been met,

and defers the calculation of the amount to be awarded to my discretion. Id. at 2–3. Petitioner filed 

a reply on January 6, 2022, arguing that Respondent’s position is overly burdensome by forcing

the Court to serve as the inquisitor and fact finder. See Reply, dated January 6, 2022. ECF No. 58

at 2–4. Nevertheless, Petitioner argues that she has met the burden of establishing reasonable fees 

and costs in requested amount. Id. at 4–5.

For the reasons set forth below, I hereby GRANT IN PART Petitioner’s motion, awarding 

fees and costs in the total amount of $149,306.81.

ANALYSIS

I. Petitioner’s Claim had Reasonable Basis

Although the Vaccine Act only guarantees a reasonable award of attorney’s fees and costs 

to successful petitioners, a special master may also award fees and costs in an unsuccessful case 

if: (1) the “petition was brought in good faith”; and (2) “there was a reasonable basis for the claim 

for which the petition was brought.” Section 15(e)(1). I have in prior decisions set forth at length 

the criteria to be applied when determining if a claim possessed “reasonable basis” sufficient for a 

fees award. See, e.g., Sterling v. Sec’y of Health & Hum. Servs., No. 16-551V, 2020 WL 549443, 

at *4 (Fed. Cl. Spec. Mstr. Jan. 3, 2020). Importantly, establishing reasonable basis does not 

automatically entitle an unsuccessful claimant to fees, but is instead a threshold obligation; fees 

can still thereafter be limited, if unreasonable, or denied entirely.

A claim’s reasonable basis3 must be demonstrated through some objective evidentiary 

showing. Cottingham v. Sec’y of Health & Hum. Servs., 971 F.3d 1337, 1344 (Fed. Cir. 2020) 

(citing Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017)). This 

3 Because this claim’s good faith is not in dispute, I do not include a discussion of the standards applicable to that fees 

prong.
3

objective inquiry is focused on the claim—counsel’s conduct is irrelevant (although it may 

bulwark good faith). Simmons, 875 F.3d at 635. Reasonable basis inquiries are not static—they 

evaluate not only what was known at the time the petition was filed, but also take into account 

what is learned about the evidentiary support for the claim as the matter progresses. Perreira v. 

Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994) (upholding the finding that a 

reasonable basis for petitioners’ claims ceased to exist once they had reviewed their expert's 

opinion, which consisted entirely of unsupported speculation).

The standard for reasonable basis is lesser (and thus inherently easier to satisfy) than the 

preponderant standard applied when assessing entitlement, as cases that fail can still have 

sufficient objective grounding for a fees award. Braun v. Sec’y of Health & Hum. Servs., 144 Fed. 

Cl. 72, 77 (2019). The Court of Federal Claims has affirmed that “[r]easonable basis is a standard 

that petitioners, at least generally, meet by submitting evidence.” Chuisano v. Sec’y of Health & 

Hum. Servs., 116 Fed. Cl. 276, 287 (Fed. Cl. 2014) (internal quotations omitted) (affirming special 

master). The factual basis and medical support for the claim is among the evidence that should be 

considered. Carter v. Sec’y of Health & Hum. Servs., 132 Fed. Cl. 372, 378 (Fed. Cl. 2017). Under 

the Vaccine Act, special masters have “maximum discretion” in applying the reasonable basis 

standard. See, e.g., Silva v. Sec’y of Health & Hum. Servs., 108 Fed. Cl. 401, 401–02 (Fed. Cl. 

2012).4

Petitioner’s claim was ultimately unsuccessful, but I find there was sufficient objective 

basis for it to entitle her to a fees and costs award. Even though the evidence best supported 

preclinical RA as the proper diagnosis, Petitioner was able to offer a number of reliable evidentiary 

items supportive of the RA diagnosis. For example, the presence of the anti-CCP antibodies, which 

Petitioner showed through a positive anti-CCP antibody test, is a significant factor in diagnosing 

RA. Although Petitioner did not preponderantly establish that the Tdap vaccine can cause RA, in 

light of the extremely lenient standard that governs reasonable basis determinations, a final award 

of fees and costs in this matter is permissible. And because I find no reason otherwise to deny a 

fees award, I will allow one herein.

II. Calculation of Fees

Determining the appropriate amount of the fees award is a two-part process. The first part 

involves application of the lodestar method - “multiplying the number of hours reasonably 

expended on the litigation times a reasonable hourly rate.” Avera v. Sec’y of Health & Hum. Servs., 

515 F.3d 1343, 1347–48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

The second part involves adjusting the lodestar calculation up or down to take relevant factors into 

4 See also Chuisano, 116 Fed. Cl. at 285 (cautioning against rigid rules or criteria for reasonable basis because they 

would subvert the discretion of special masters and stating that an amorphous definition of reasonable basis is 

consistent with the Vaccine Act as a whole). 
4

consideration. Id. at 1348. This standard for calculating a fee award is considered applicable in 

most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 

429–37 (1983). 

An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the 

proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C., 

for Vaccine Act cases), except where an attorney’s work was not performed in the forum and there 

is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at 1348 

(citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. 

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate ranges 

for attorneys with different levels of experience who are entitled to the forum rate in the Vaccine 

Program. See McCulloch v. Sec’y of Health & Hum. Servs., No. 09-293V, 2015 WL 5634323, at 

*19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015).

Petitioner requests the following rates for her attorneys, based on the years work was 

performed:

Attorneys 2016 2017 2018 2019 2020 2021

Altom Maglio -- $362.00 -- -- $420.00 --

Joseph 

Vuckovich

-- $290.00 $300.00 $315.00 $345.00 $370.00

Christina 

Unkel

$295.00 -- -- -- -- --

Isaiah 

Kalinowski

-- -- -- -- -- $430.00

ECF No. 56-1 at 61–62.

The attorneys at Maglio Christopher & Toale, P.A. practice in Washington, DC—a 

jurisdiction that has been deemed “in forum.” Accordingly, the attorneys are entitled to the rates 

established in McCulloch. See See Sauer v. Sec'y of Health & Hum. Servs., No. 17-780V, 2019 

WL 4302891, at *3 (Fed. Cl. Spec. Mstr. Aug. 27, 2019). The rates requested for Mr. Maglio, Mr. 

Vuvkovich, and Mr. Kalinowski are also consistent with what has previously been awarded for

their time, in accordance with the Office of Special Masters’ fee schedule.5 See, e.g., Conte v. Sec'y 

of Health & Hum. Servs., No. 17-403V, 2021 WL 1120983, at *2 (Fed. Cl. Spec. Mstr. Feb. 19, 

5 OSM Attorneys’ Forum Hourly Rate Fee Schedules, https://www.uscfc.uscourts.gov/node/2914 (last visited Mar. 

22, 2021).
5

2021); Littrell v. Sec'y of Health & Hum. Servs., No. 17-796V, 2019 WL 2281746, at *2 (Fed. Cl. 

Spec. Mstr. Apr. 24, 2019); Sharkey v. Sec'y of Health & Hum. Servs., No. 99-669V, 2014 WL 

5786559, at *1 (Fed. Cl. Spec. Mstr. Oct. 17, 2014). I thus find no cause to reduce their rates in 

this instance. Although I could not find prior cases for Ms. Unkel in the Program and she did not 

provide an affidavit of her experience, the total sum is reasonable for time she devoted to the matter 

as well.

Otherwise, I award all attorney time devoted to the matter, as well as paralegal time (at the 

requested rates).6

III. Calculation of Attorney’s Costs

Just as they are required to establish the reasonableness of requested fees, petitioners must 

also demonstrate that requested litigation costs are reasonable. Presault v. United States, 52 Fed. 

Cl. 667, 670 (2002); Perreira v. Sec’y of Dep’t of Health & Hum. Servs., 27 Fed. Cl. 29, 34 (1992). 

Reasonable costs include the costs of obtaining medical records and expert time incurred while 

working on a case. Fester v. Sec’y of Health & Hum. Servs., No.10-243V, 2013 WL 5367670, at 

*16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to substantiate a cost item, such as 

by not providing appropriate documentation to explain the basis for a particular cost, special 

masters have refrained from paying the cost at issue. See, e.g., Gardner-Cook v. Sec’y of Health 

& Hum. Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30, 2005).

Petitioners seek $25,497.08 in outstanding costs, including medical literature and medical 

record retrieval costs, plus costs associated with the work of a single expert, Daniel Wallace, M.D. 

ECF Nos. 19, 24, 25. I shall award all costs as requested, with the exception of costs relating to 

Dr. Wallace’s work on the matter.

Dr. Wallace had a retainer fee of $2,500.00. ECF No. 56-2 at 1. He testified at the hearing 

and authored three expert reports, billing $22,200.00 in total at a rate of $800 per hour. ECF Nos. 

56 at 3; 56-2 at 1–2. This hourly rate is problematic. Although a rate of $800 has been awarded to 

experts in the past, Dr. Wallace is not an experienced Program expert, and does not appear to have 

offered any prior opinions in Program cases outside of this matter. Thus, there is no authority 

6 The rates for the fifteen paralegals who worked on this matter are also consistent with what has been previously been 

awarded and in accordance with the Office of Special Masters’ fee schedule. ECF No. 56-1 at 61–62. Specifically, 

Amanda Ramos charged one rate of $95.00 and another rate of $105.00 in 2016; $145.00 in 2017; $148.00 in 2018. 

Amy Semaine charged $155.00 in 2021. Ana Khundzak charged $145.00 in 2017. Ashlee Arakelian charged $145.00 

in 2017. Dashea King charged $145.00 in 2020. Elyssa Estrella charged $160.00 in 2020 and $165.00 in 2021. Gricely 

Gonzalez charged $105.00 in 2016. Katherine Ochoa Castillo charged $154.00 in 2019 and $160.00 in 2020. Kimberly 

Dutra charged $148.00 in 2018; $154.00 in 2019; $165.00 in 2021. Kristin Harding charged $145.00 in 2017. Lindsay 

Wilkinson charged $165.00 in 2021. Maria Rodriguez-Castro charged $160.00 in 2020 and $165.00 in 2021. Melissa 

Sealy charged $148.00 in 2018. Rosa Salgado charged $145.00 in 2017 and $148.00 in 2018.
6

establishing the appropriateness of the requested rate – which exceeds what is paid to even wellexperienced, frequently-appearing experts. I will instead award the lesser rate of $500 per hour, 

which is a high (and thus very generous) rate for new Program experts.

As such, the new total amount I will award for Dr. Wallace’s work is $14,815.63.7 The

total amount of costs I will award is $18,112.71.8

CONCLUSION

Based on the foregoing, and in the exercise of the discretion afforded to me in determining 

the propriety of a final fees award, I GRANT IN PART Petitioner’s Motion for Attorney’s Fees 

and Costs, and award a total of $149,306.81, reflecting $131,194.10 in attorney’s fees and

$18,112.71 in costs, in the form of a check made jointly payable to Petitioner and her law firm 

Maglio Christopher & Toale, P.A.

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

Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.9

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

7 I would note that Petitioner found that Dr. Wallace worked a total of 22.75 hours, but that amount is incorrect given 

that a rate of $800.00 for 22.75 = $18,200.00. Even including the retainer fee of $2,500.00 only amounts to $20,700.00.

As it stands, Dr. Wallace billed $22,200.00 total, so this amount (less the retainer fee of $2,500.00) = $19.705.00. 

$19,705.00 divided by an hourly rate of $800.00 = 24.63 hours. To get to the new total, a rate of $500.00 multiplied 

by 24.63 hours = $12,315.63. This amount added to the retainer fee of $2,500.00 equals a new total of $14,815.63.

8 The requested total amount of costs ($25,497.08) subtracted by the previous amount charged by Dr. Wallace 

($22,200.00) = $3,297.08 in the remainder of Petitioner’s costs. Thus, the new total is these costs ($3,297.08) plus the 

new total for Dr. Wallace ($14,815.63) = $18,112.71.

9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices 

renouncing their right to seek review.