In the United States Court of Federal Claims
                              OFFICE OF SPECIAL MASTERS

******************** *
GLORIA BOESKE,                        *
                                      *     No. 16-1685V
                    Petitioner,       *     Special Master Christian J. Moran
                                      *
v.                                    *     Filed: May 24, 2019
                                      *
SECRETARY OF HEALTH                   *     Attorneys’ fees and costs.
AND HUMAN SERVICES,                   *
                                      *
                    Respondent.       *
******************** *
Jeffrey Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner;
Mollie Gorney, United States Dep’t of Justice, Washington, DC, for Respondent.

                      UNPUBLISHED DECISION AWARDING
                        ATTORNEYS’ FEES AND COSTS1

      Gloria Boeske brought a successful petition for compensation in the
National Childhood Vaccine Compensation Program, 42 U.S.C. §§300aa-10
through 34 (2012). She now seeks an award for attorneys’ fees and costs. She is
awarded $46,565.00.

                                        *       *      *




       1
         Because this 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). This means the ruling will be
available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),
petitioners have 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 before posting the ruling.
       Represented by Jeffrey Pop, Ms. Boeske filed a petition for compensation on
December 22, 2016. In her petition, Ms. Boeske alleged that the Hepatitis A
vaccine, which is contained in the Vaccine Injury Table, 42 C.F.R. § 100.3(a), and
which she received on July 23, 2015, caused her to suffer from a right shoulder
injury related to vaccine administration (SIRVA).
      An onset hearing was held in Grand Rapids, Michigan, during which four
witnesses testified. Afterwards, thanks to the efforts of both counsel for petitioner
and respondent, the parties were able to resolve the case informally. The parties
submitted a joint stipulation that was adopted as the decision on this petition.
Decision, issued Apr. 4, 2019, 2019 WL 1992629.

       On May 10, 2019, petitioner moved for reimbursement of attorneys’ fees
and costs, requesting $44,965.00 in attorneys’ fees and $5,063.67 in attorneys’
costs. Pet’r’s Mot. for Attorneys’ Fees and Costs at 11. Ms. Boeske filed a signed
affidavit confirming that she did not incur any costs related to this litigation. Id.,
General Order No. 9 Statement of Ms. Boeske.

       On May 13, 2019, respondent filed his response to petitioner’s motion. In
his response, respondent stated that he was “satisfied the statutory requirements for
an award of attorneys’ fees and costs are met in this case” and deferred to the
undersigned’s discretion to “determine a reasonable award for attorneys’ fees and
costs.” Resp’t’s Resp., filed May 13, 2019, at 2-3.

      This matter is now ripe for adjudication.
                                       *      *     *

       Because Ms. Boeske received compensation, she is entitled to an award of
reasonable attorneys’ fees and costs. 42 U.S.C. § 300aa–15(e). Thus, the question
at bar is whether Ms. Boeske’s requested amount is reasonable.

       The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs. 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial

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calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required.

       In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Sec'y of Health &
Human Servs., 139 Fed. Cl. 238 (2018).

      A.     Reasonable Hourly Rate
       The hourly rates charged by Mr. Pop and the members of his firm, including
the rate increase for 2019, are in line with those previously awarded by other
special masters. See, e.g., Spicer v. Sec'y of Health & Human Servs., No. 17-
0885V, slip op. at *3 (Fed. Cl. Spec. Mstr. Apr. 5, 2019). The undersigned has
independently reviewed the requested rates and also finds them to be reasonable.
      B.     Reasonable Number of Hours

      The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.

       Mr. Pop’s billing statement is characteristically well-done. The line items
allow for a sufficiently detailed review of the work performed and the amount
billed and, in large part, the two are concordant. However, Mr. Pop’s use of two
attorneys, himself and Ms. Alexandra Pop, for the one-day hearing was a
questionable expense. Although the hearing involved four witnesses, the nature of
the testimony was sufficiently straightforward that the undersigned is confident
that Mr. Pop could have performed the work himself without the assistance of Ms.
Pop.2 The undersigned suspects Ms. Pop’s presence was, in some part, intended to
give Ms. Pop additional trial experience. This added experience is important for
both Ms. Pop and the Program. However, in evaluating whether an expense
reaches the “reasonable” standard, the Federal Circuit has endorsed a special

      2
         To be sure, Ms. Pop did an able job in the hearing and is demonstrating
herself to be a capable young attorney.
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master’s evaluation of whether a hypothetical client would pay for the expenses
being submitted for compensation to the Vaccine Program. See Riggins v. Sec'y of
Health & Human Servs., 406 F. App'x 479, 484 (Fed. Cir. 2011). See also Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983) (citing Copeland v. Marshall, 641 F.2d 880,
891 (D.C. Cir. 1980) (en banc) (emphasis in the original) (“In the private sector,
billing judgment is an important component in fee setting. It is no less important
here. Hours that are not properly billed to one's client also are not properly billed
to one's adversary pursuant to statutory authority”)). In the undersigned’s
estimation, it would not be reasonable to bill for training by Ms. Pop at her full
hourly rate when Mr. Pop is there billing for his time and able to do the work
himself. However, because Ms. Pop’s presence did provide some value to Ms.
Boeske, the undersigned finds it reasonable for Ms. Pop to be compensated at half
her standard time for all work that Mr. Pop could have performed himself and
when Mr. Pop was also billing for the time as well.

      To the attorneys’ credit, a review of the timesheets indicates that Mr. and
Ms. Pop did little work that was duplicative; instead most of the duplicative time
involved the time spent travelling to the hearing and the time actually at the
hearing. See Pet’r’s Mot. for Attorneys’ Fees and Costs, timesheets at 14.
Accordingly, reducing the duplicative hours results in a reduction of approximately
8 hours, or $1,800.

      With this exception, the undersigned finds the number of hours billed to be
reasonable. Ms. Boeske is accordingly awarded $43,165.00 in attorneys’ fees.

      C.     Costs

       Petitioner also requests $5,063.67 in costs incurred by her attorney. Many of
these costs are associated with routine costs such as the court filing fee, retrieval of
medical records, and shipping. These costs are reasonable and are awarded in full.

       Approximately $3,500 in costs are associated with Mr. and Ms. Pop’s travel
to Grand Rapids for the hearing. The expenses associated with Mr. Pop’s travel
are largely reasonable. However, the undersigned is concerned by the over $1,200
Mr. Pop spent on roundtrip airfare to Grand Rapids from Los Angeles. It appears
that this high cost is partly attributable to Mr. Pop’s purchase of a “Business
Select” fare on Southwest airlines. Pet’r’s Mot. for Attorneys’ Fees and Costs,
Costs at 26. The undersigned understands that Southwest Business Select fares are
                                              4
generally not the most competitive airfares available and this is consistent with the
apparent high cost of this ticket. Based on the high cost of this ticket, Mr. Pop
would have been advised to demonstrate that this ticket was, indeed, the most
reasonably-priced ticket, but the fees and costs motion does not provide an
explanation. An internet price comparison of tickets from Los Angeles to Grand
Rapids indicates that roundtrip airfare generally falls within the range of $400-
$700. Accordingly, petitioner is reimbursed $700 for the roundtrip price of the
ticket. See Taylor v. Sec'y of Health & Human Servs., No. 13-700V, 2018 WL
6291355, at *4 (Fed. Cl. Spec. Mstr. Oct. 30, 2018) (declining to reimburse the
cost of a business class ticket and instead reimbursing the estimated cost of a
coach-class ticket by independently researching the costs of the airfare). This
results in a reduction of $533.16 for Mr. Pop’s airfare.
       As for Ms. Pop’s travel, just as the undersigned awarded Ms. Pop half her
typical fee for the time she spent attending and participating in the hearing, the
undersigned finds a reimbursement of half of her costs associated with travel to the
hearing to be reasonable under these circumstances. Accordingly, the undersigned
awards reimbursement of $350 for Ms. Pop’s airfare and $247.35 for Ms. Pop’s
hotel. In total, the undersigned finds $3,400.00 of the requested costs to be
reimbursable under the Act.

      For the reasons stated above, petitioner is awarded:

       A lump sum of $46,565.00 in the form of a check made payable to
petitioner and petitioner’s attorney, Jeffrey S. Pop.

       These amounts represent reimbursement attorneys’ fees and other litigation
costs available under 42 U.S.C. § 300aa-15(e). In the absence of a motion for
review filed pursuant to RCFC Appendix B, the clerk of the court is directed to
enter judgment herewith.

      IT IS SO ORDERED.
                                                    s/Christian J. Moran
                                                    Christian J. Moran
                                                    Special Master




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