    In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                       Filed: April 2, 2019

* * * * * * * * * * * * * *
WENDELL DAVIS,             *                                    UNPUBLISHED
                           *
         Petitioner,       *                                    No. 16-774V
                           *                                    Special Master Gowen
v.                         *
                           *                                    Attorneys’ Fees and Costs
SECRETARY OF HEALTH        *
AND HUMAN SERVICES,        *
                           *
         Respondent.       *
* * * * * * * * * * * * * *
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Voris E. Johnson, United States Department of Justice, Washington, DC, for Respondent.

                         DECISION ON ATTORNEYS’ FEES AND COSTS1

       On December 14, 2018, Wendell Davis (“Petitioner”) filed a motion for attorneys’ fees and
costs. Petitioner’s Motion for Attorney Fees (“Fees App.”) (ECF No. 74). For the reasons
discussed below, the undersigned GRANTS Petitioner’s motion for attorneys’ fees and costs and
awards a total of $116,040.60.

    I.        Procedural History

        On June 29, 2016, Petitioner filed a petition in the National Vaccine Injury Compensation
Program.2 Petitioner alleged that as a result of receiving the Hepatitis A and tetanus-diphtheria-
acellular pertussis (“TDaP”) vaccinations on August 14, 2014, he suffered from macrophagic
myofasciitis (“MMF”). Petition at 1. On October 31, 2018, the parties filed a stipulation, which I

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 Because this unpublished ruling contains a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
 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury
Act of 1986, Pub L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine
Act” or “the Act”). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
adopted as my Decision awarding damages on the same day. Decision, ECF No. 69.

         On December 14, 2018, Petitioner filed a motion for attorneys’ fees and costs. Petitioner
requests compensation for his attorney, Mr. Jeffrey Pop, in the total amount of $116,969.35,
representing $67,898.00 in attorneys’ fees and $49,071.35 in costs. Fees App. at 5-7. Pursuant to
General Order No. 9, Petitioner warrants that he not personally incurred any costs in pursuit of this
litigation. Fees App. Ex. 7. Respondent reacted to the fees motion on December 18, 2018,
indicating that “Respondent is satisfied the statutory requirements for an award of attorneys’ fees
and costs are met in this case” and recommending that “the special master exercise his discretion
and determine a reasonable award for attorneys’ fees and costs.” Response at 2-3 (ECF No. 75).
Petitioner did not file a reply. The matter is now ripe for adjudication.

   II.     Analysis

        Under the Vaccine Act, the special master may award reasonable attorneys' fees and costs
for a petition that does not result in an award of compensation, but was filed in good faith and
supported by a reasonable basis. § 300aa–15(e)(1). In this case, Petitioner was awarded
compensation pursuant to a stipulation, and therefore he is entitled to an award of reasonable
attorneys’ fees and costs.

         Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec'y of Health & Human Servs., 24 Cl. Ct. 482,
484 (1993). Adequate proof of the claimed fees and costs should be presented when the motion is
filed. Id. at 484 n. 1. The special master has the discretion to reduce awards sua sponte, independent
of enumerated objections from the respondent. Sabella v. Sec'y of Health & Human Servs., 86 Fed.
Cl. 201, 208–09 (Fed. Cl. 2009); Savin v. Sec'y of Health & Human Servs., 85 Fed. Cl. 313 (Fed.
Cl. 2008), aff'd No. 99–537V, 2008 WL 2066611 (Fed. Cl. Spec. Mstr. Apr. 22, 2008).

               a. Attorneys’ Fees

        Petitioner requests the following rates of compensation for work performed by her
attorneys: for Mr. Jeffrey Pop, $400.00 per hour for work performed in 2015 and $420.00 per hour
for work performed in 2016-2018; and for Ms. Kristina Grigorian, $250.00 per hour for work
performed in 2016-2018. Fees App Ex. 2 at 2. Petitioner also requests that Mr. Thomas Hahn, a
senior law clerk, be compensated at $145.00 per hour for all work performed and for all other law
clerks to be compensated at $125.00 per hour for all work. Id.

        The rates requested for the attorneys and law clerks in this case are consistent with what I
and other special masters have awarded Mr. Pop’s firm for their work on Vaccine Program cases.
See Morrison v. Sec’y of Health & Human Servs., No. 16-526V, 2017 WL 6889720 (Fed. Cl. Spec.
Mstr. Nov. 28, 2018); Contreras-Rodriguez v. Sec’y of Health & Human Servs., No. 05-626V,
2018 WL 3989507 (Fed. Cl. Spec. Mstr. July 2, 2018). Accordingly, no adjustment to the requested
rates is necessary. Additionally, the overall hours spent on this matter (252.7) appear to be
reasonable, especially given the complexity of the case. I have reviewed the submitted
documentation and do not find any entries to be objectionable, and Respondent has not pointed to
any particular entries as objectionable. Accordingly, based on the rates determined, I will award


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Petitioner a total of $67,898.00 in attorneys’ fees.

                  b. Attorneys’ Costs

        Like attorneys’ fees, a request for reimbursement of costs must be reasonable. Perreira v.
Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests total
attorneys’ costs in the amount of $49,071.35. This amount consists of acquiring medical records
and medical literature, mailing costs, travel costs, and the work of several professionals in this
case: Dr. S. Sohail Ahmed in providing an expert report, Ms. Brook Feerick in providing a life
care plan, and former Chief Special Master Gary Golkiewicz in providing mediation services. Fees
App. at 6-7. The undersigned has reviewed the invoices prepared by each of these professionals
and in each case, they have charged an hourly rate which has previously been awarded to them by
a special master of this Court and have kept an adequate contemporary log of the work performed
and the time spent on each task.

        The only cause for reduction for the requested costs is for the travel expenses of Ms.
Feerick. Ms. Feerick traveled twice in this case, once to conduct a site visit with Petitioner and
once to attend the mediation, and in each instance traveled via first class airfare. Fees App. Ex. 3
at 45, 67. It is well-established that the Vaccine Program will not compensate petitioners for
upgraded methods of travel such as first-class airfare, black car service, or Acela Express train
fare. See Tetlock v. Sec’y of Health & Human Servs., No. 10-56V, 2017 WL 5664257, at *6 (Fed.
Cl. Spec. Mstr. Nov. 1, 2017); Reichert v. Sec’y of Health & Human Servs., No. 16-697V, 2018
WL 3989429, at *4 (Fed. Cl. Spec. Mstr. Jun. 20, 2018); McCulloch, 2015 WL 5634323, at *22. I
will therefore only compensate these travel costs at 50% to bring them more in line with what
regular airfare would cost. This results in a reduction of $928.75.3

        Concerning the remaining costs, Petitioner has provided adequate documentation
supporting them and they shall be awarded in full. Petitioner is therefore entitled to a final award
of costs in the amount of $48,142.60.

      III.   Conclusion

       In accordance with the foregoing, Petitioner’s motion for attorneys’ fees and costs is
GRANTED. I find that Petitioner is entitled to a reimbursement of attorneys’ fees and costs as
follows:

    Attorneys’ Fees Requested                                                     $67,898.00
    (Reduction of Fees)                                                                -
    Total Attorneys’ Fees Awarded                                                 $67,898.00

    Attorneys’ Costs Requested                                                    $49,071.35
    (Reduction of Costs)                                                          - ($928.75)

3
 The submitted documentation indicates that Ms. Feerick billed $1,544.60 for one ticket at $312.90 for the other
(Ms. Feerick only billed half of this one-way ticket due to combining a family visit with the travel for mediation).
Each ticket was first class and therefore reduced by 50%.


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    Total Attorneys’ Costs Awarded                                               $48,142.60

    Total Attorneys’ Fees and Costs                                             $116,040.60

         Accordingly, I award the following:

      1) A lump sum in the amount of $116,040.60, representing reimbursement for
         petitioner’s attorneys’ fees and costs, in the form of a check payable to petitioner and
         his attorney, Mr. Jeffrey Pop.4; and

        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.5

         IT IS SO ORDERED.


                                                      s/Thomas L. Gowen
                                                      Thomas L. Gowen
                                                      Special Master




4
  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,” and fees for legal services rendered. Furthermore, Section 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).
5
 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. Vaccine
Rule 11(a).

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