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UNPUBLISHED DECISION AWARDING 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.
2

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 
3

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. 
4

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 
5

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