John B. Speigner, Jr. v. Robert L. Wilkie ( 2019 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2811(E)
JOHN B. SPEIGNER, JR., APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appellant's Application for Attorney Fees and Expenses
(Argued October 19, 2018 Decided February 28, 2019)
Barton F. Stichman, of Washington, D.C., argued for the appellant. Katy S. Clemens, of
Washington, D.C., and Daniel W. Halston and David Rollins-Boyd, both of Boston, Massachusetts,
were on the pleadings, for the appellant.
Julia A. Turner, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief
Counsel; and Christopher W. Wallace, Deputy Chief Counsel, were on the pleading, all of
Washington, D.C., for the appellee.
Before SCHOELEN, BARTLEY, and MEREDITH, Judges.
SCHOELEN, Judge: Veteran John B. Speigner, Jr., filed an application under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), for an award of attorney fees and expenses in
the amount of $11,605.72. This Court has jurisdiction under 28 U.S.C. § 2412(d)(2)(F) to award
reasonable attorney fees and expenses. Mr. Speigner requests that his attorneys, Caitlin M. Milo
and Rory E. Riley, who are employed by National Veterans Legal Services Program (NVLSP), 1
but working in locations other than NVLSP's office in Washington, D.C., receive hourly attorney
fees of $201.89 based on the Consumer Price Index for all Urban Consumers (CPI-U)2 for the
1
Attorney Riley no longer works for NVLSP, but was employed there during Mr. Speigner's appeal.
Appellant's Reply Memorandum (Appellant's Reply) at 6.
2
The CPI-U is published by the U.S. Department of Labor's Bureau of Labor Statistics. See BUREAU OF
LABOR STATISTICS, available at https://www.bls.gov/ (last visited Feb. 27, 2019). The CPI-U is a "measure of the
average change over time in the prices paid by urban consumers for a market basket of consumer goods and services."
BUREAU OF LABOR STATISTICS, https://www.bls.gov/cpi/ (last visited Feb. 27, 2019).
Washington, D.C., area3 rather than the CPI-Us for New Jersey and North Carolina, where attorney
Milo and attorney Riley live and telework, respectively. 28 U.S.C. § 2412(d)(2)(A).
Advanced technology in the workplace has allowed telework to become an increasingly
popular option for employees, including attorneys. The U.S. Office of Personnel Management has
stated that numbers of teleworking employees are steadily increasing, and that, in fiscal year 2017,
21% of all federal employees participated in telework. U.S. OFFICE OF PERSONNEL MGMT., Status
of Telework in the Federal Government, Report to Congress, Fiscal Year 2017, at 31 (Jan. 2019),
https://www.telework.gov/reports-studies/reports-to-congress/annual-reports (last visited
Feb. 27, 2019). Telework presents a novel issue for this Court when it selects a CPI-U for an
attorney who works on a case from his or her residence located in a geographical area different
from that of his or her employer's office.
This case was referred to panel to address two separate, but related, questions: (1) When a
teleworking attorney works on a case from his or her residence, should the CPI-U correspond to
the location of the teleworking attorney's residence, and (2) when overhead costs are incurred by
the attorney's employer's office, should the location of the employer's office and its corresponding
CPI-U be used? We hold that, where a teleworking attorney has worked on a case from his or her
residence, the CPI-U should correspond to the location of the attorney's residence. We also
conclude that selecting a CPI-U based on where overhead costs are incurred is not supported by
the caselaw, and we note that basing CPI-U on where overhead costs are incurred appears to be an
overly burdensome standard that frustrates the purposes of EAJA. The Court will grant
Mr. Speigner's EAJA application, but in the reduced amount of $11,390.65.
I. FACTS AND PROCEDURAL HISTORY
An April 14, 2016, Board of Veterans' Appeals (Board) decision denied Mr. Speigner's
claim for entitlement to a temporary total disability rating following January 2010 back surgery.
Mr. Speigner appealed the Board's denial of this issue to the Court, where the parties agreed to a
joint motion for partial remand (JMPR). The Court granted that motion on September 29, 2017,
3
There is no CPI-U specific to Washington, D.C., but there is a CPI-U for the Washington, D.C. area
(DC-VA-MD-WV). This regional CPI-U was used. See Mannino v. West, 12 Vet.App. 242, 243 (1999) (holding that
a regional CPI-U will be used when a local CPI-U is not available); see also BUREAU OF LABOR STATISTICS, available
at https://www.bls.gov/cpi/ (last visited Feb. 27, 2019).
2
vacating the April 2016 Board decision to deny a temporary total rating, and remanding the matter
for action consistent with the JMPR.
In October 2017, Mr. Speigner filed a timely application for attorney fees and expenses
under EAJA, requesting an hourly rate of $201.89 for attorneys Milo and Riley, calculated using
the Washington, D.C., area CPI-U. See Application for Attorneys' Fees and Expenses (EAJA
Application). Attorneys Milo and Riley worked on the case exclusively from their residences in
Swedesboro, New Jersey, and Charlotte, North Carolina, respectively. Appellant's Reply at 6. The
appellant also seeks fees for an attorney who worked at NVLSP's D.C. office; a paralegal who
worked at NVLSP's D.C. office; and David Rollins-Boyd, an attorney who worked at the Boston,
Massachusetts, office of Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale), who provided
pro bono representation.4 See EAJA Application at 9-10.
II. ANALYSIS
EAJA is a fee-shifting statute that reimburses prevailing parties in certain civil actions
against the United States for "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A). The statute
explains that "reasonable attorney fees"
shall be based upon prevailing market rates for the kind and quality of the services
furnished, except that . . . attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings involved, justifies a higher
fee.
28 U.S.C. § 2412(d)(2)(A) (emphasis added).
When determining whether a cost-of-living increase justifies awarding attorney fees in
excess of EAJA's $125-per-hour maximum, this Court compares the CPI-U for all items for the
locality or region where the legal services were performed when the statutory maximum hourly
rate was established, i.e., the "base rate," with the CPI-U for the time when the legal services were
provided. Mannino, 12 Vet.App. at 243; see Elcyzyn v. Brown, 7 Vet.App. 170, 181 (1994)
(holding that the selection of the CPI-U will be based on the location "where the services were
4
The retainer agreement between Mr. Speigner and WilmerHale shows that WilmerHale agreed to represent
him on a pro bono basis, but that WilmerHale was also authorized to apply for attorney fees and expenses under fee
shifting statutes, such as EAJA.
3
performed"). If the latter is greater than the former, the percentage difference between the two
CPI-Us is applied to increase the statutory hourly rate, and the higher hourly rate is approved.
A. CPI-U and Attorney Location
The Secretary asserts that Mr. Speigner did not use the correct CPI-U to calculate the fees
for attorneys Milo and Riley because the attorneys did not work on the case in Washington, D.C.,
and, in accordance with the caselaw, the fees should be calculated using the CPI-Us corresponding
to where the attorneys worked on the case.5 Secretary's Resp. at 2-8. Mr. Speigner responds that
the Washington, D.C., area CPI-U should be used to calculate the increase in cost of living for
attorneys Milo and Riley, asserting that the caselaw, specifically Parrott v. Shulkin, 851 F.3d 1242(Fed. Cir. 2017), supports using the Washington, D.C., area CPI-U. Appellant's Reply at 3-4. He
argues that Parrott focused on an attorney's office location and though attorney Milo worked on
his case from her residence, she used NVLSP's D.C. office address as her business address and the
address for all legal correspondence.6 Id. at 5-6.
Nonetheless, the Court's caselaw is clear that to calculate the cost-of-living adjustment
under EAJA, the CPI-U corresponds to the location where an attorney works. See Elcyzyn,
7 Vet.App. at 181 (holding that the CPI-U must be applied "where the services were performed").
In Mannino, the Court found that the local CPI-U should be applied when available and, when it
is not, the regional CPI-U should be applied, because "the national policy underlying the EAJA
(to encourage the representation of persons with claims against the United States[)] . . . is better
served by tying the attorney-fee rate paid more closely to the actual CPI[-U] increase where the
attorney works." 12 Vet.App. at 243 (emphasis added). In another case, when addressing the
appropriate fee for attorneys whose firm had multiple office locations, the Court held that attorneys
who worked at their firm's Richmond, Virginia, office should not receive a fee based on the CPI-U
corresponding to the firm's Washington, D.C., office, because they did not perform work at the
firm's Washington, D.C., office. Baldridge v. Nicholson, 19 Vet.App. 227, 246 (2005).
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) addressed CPI-U
selection for an attorney who worked on a case at offices in San Francisco, Dallas, and Little Rock,
5
The Secretary only disputes the fees requested for attorneys Milo and Riley and not any other aspect of the
EAJA application. Secretary's Response to Appellant's Application for Attorney Fees and Expenses (Secretary's
Resp.).
6
The appellant contends that the same is also true for attorney Riley. See Appellant's Reply at 6 n.3.
4
and also did very little work in Washington, D.C., where he did not have an office. Parrott,
851 F.3d at 1245-46. The Federal Circuit found that the attorney's time should be apportioned
among those offices in San Francisco, Dallas, and Little Rock, and that the CPI-U for the location
of each of these three offices must be used for the work performed at that office. Id. at 1249-50.
Citing Mannino, the Federal Circuit explained that "[t]he local CPI[-U] approach typically focuses
on where an attorney works and has his or her office" and that using the "market rate and the cost
of living actually experienced by an EAJA applicant's attorney is most consistent with EAJA's
plain language." Id. at 1245, 1249; see Cox Constr. Co. v. United States, 17 Cl. Ct. 29, 37 (1989)
(holding that the CPI-U for San Diego would be used because that is the "locale in which legal
services were rendered"); Kunz Constr. Co. v. United States, 16 Cl. Ct. 431, 438 (1989) ("The
CPI[-U] figures to be applied are those for the cost of living increases experienced in the locale
where legal services were rendered.").
Mr. Speigner argues that attorney Milo identified her office as NVLSP's Washington, D.C.,
office and that a reading of Parrott warrants using the CPI-U of the Washington, D.C., area.
Appellant's Reply at 5-6. However, his argument fails. Parrott held that the local CPI-U approach
"typically focuses on where an attorney works and has his or her office," and that, because the
attorney maintained offices in San Francisco, Dallas, and Little Rock and worked on the case in
all three locations, the EAJA application should have apportioned the attorney's time among those
locations and used the CPI-U for each locality. Parrott, 851 F.3d at 1245, 1250 (emphasis added).
Further, in Baldridge, this Court held that the attorneys were required to use the CPI-U of the
location of the firm's office where the work was performed, not merely where the firm had another
office. 19 Vet.App. at 246. Though Mr. Speigner is correct that Parrott focused on where an
attorney worked and maintained an office, where, as here, the teleworking attorneys' services were
exclusively performed at their residences, their residences serve as their de facto offices.
Mr. Speigner's argument for selecting the CPI-U that corresponds to the location of NVLSP's
headquarters is not based on any work being completed there. There is no other work location
besides the attorneys' residences for the Court to consider. If attorneys Milo or Riley had also
performed work at NVLSP's office in Washington, D.C., then it would also have been appropriate
for the hours worked there to be billed based on the Washington, D.C., area CPI-U.
Mr. Speigner also asserts that selecting a CPI-U based on where an attorney works on a
case is an unworkable standard. Appellant's Reply at 8. For example, he asks the Court to consider
5
an attorney whose office is located in Butte, Montana, and who takes a trip to New York City and
works 7 hours there and then spends 5 hours working while visiting his ailing mother in Tampa,
Florida. Id. Mr. Speigner asserts that, in this hypothetical, we would have to use the CPI-Us for
both New York City and Tampa for the hours worked at each location. Id. But, because here
attorneys Milo and Riley do not assert that they worked outside their residences, the facts of this
case do not implicate Mr. Speigner's argument concerning what CPI-U would be used when a
small amount of work is completed outside the residence. Moreover, the Court's finding in this
case does not speak to whether temporary settings may be considered de facto offices. The holding
here does not change how EAJA applications have been traditionally adjudicated, and it applies
the long-established standard of CPI-U selection based on where an attorney works and has an
office to a teleworking attorney who works on a case from his or her residence. See Baldridge,
19 Vet.App. at 246; Mannino, 12 Vet.App. at 243; Elcyzyn, 7 Vet.App. at 181.
Based on the Court's own precedent and the Federal Circuit's decision in Parrott, the Court
holds that when a teleworking attorney works on a case from his or her residence, the CPI-U must
be based on the location of the teleworking attorney's residence. Because the legal services at
issue in this case were exclusively performed at attorney Milo's and attorney Riley's residences,
the CPI-U should correspond to the locations of their residences.
B. Overhead Costs and Cost of Living
The Court now turns to Mr. Speigner's overarching argument – that the cost-of-living
adjustment under EAJA is intended to address the rising prices of an attorney's overhead costs over
time. Because the Court uses the local or regional CPI-U where an attorney works to calculate the
cost-of-living adjustment, see Mannino, 12 Vet.App. at 243, Mr. Speigner urges the Court to find
that the Washington, D.C., area CPI-U should be used because NVLSP's Washington, D.C., office
pays the overhead costs to support the teleworking attorneys' work. Appellant's Reply at 11. In
support of his argument, he primarily relies on Baldridge, which held:
[EAJA] [a]pplicants are not permitted to bill for and collect fees for clerical work
and the work of general support staff. Because of the assumption that "work done
by librarians, clerical personnel and other support staff . . . [is] generally considered
within the overhead component of a lawyer's fee," costs for such work are not
properly charged to the government under EAJA.
6
19 Vet.App. at 236 (citing Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 974 (D.C. Cir. 2004));
see Appellant's Reply at 9. He argues that, because Parrott held that the cost-of-living adjustment
is determined by where an attorney works and has an office, the purpose is to address an attorney's
overhead costs at his or her office. Id. at 9, 11.
In recounting the various costs incurred by NVLSP's Washington, D.C., office, he states
that attorney Milo uses a computer owned by NVLSP's D.C. office that functions by "remotely
accessing a corresponding physical computer tower with its own dedicated space in NVLSP's D.C.
office." Appellant's Reply at 6. He states that the computer is hosted on a server in the D.C. office;
the information technology staff that supports the computer and software is located at the D.C.
office; all computer filings are uploaded and transmitted via an NVLSP-owned computer; all office
equipment and supplies used by the attorney are paid for by the D.C. office; and the rates for
equipment and maintenance, "as well as regular monthly fees for internet access and for the
hardware and software when applicable, are paid by NVLSP's D.C. office at Washington, D.C.[,]
area rates." Appellant's Reply at 6-7. Mr. Speigner further notes that attorney Milo's phone
number and cell phone are hosted by the telephone exchange at the D.C. office and that her mail
is sorted, scanned, and uploaded by staff located at the D.C. office.7 Id. at 7-8.
In turn, the Secretary posits that the cost-of-living adjustment under EAJA is intended to
address the rising prices of the personal costs for goods and services experienced by an attorney
where he or she lives and works. He argues that, for example, it is less expensive to hire an attorney
who works in New Jersey, where attorney Milo worked on the case, than it is to hire an attorney
who works in D.C., because in New Jersey, goods and services cost less. Oral Argument
at 28:24-28:47, Speigner v. Wilkie, U.S. Vet. App. No. 16-2811 (oral argument held
Oct. 19, 2018), http://www.uscourts.cavc.gov/oral_arguments_audio.php.
The Court declines to take Mr. Speigner's approach for several reasons. Despite
Mr. Speigner's assertions that the maximum statutory fee and cost-of-living adjustment under
EAJA pertains to an attorney's overhead costs, the Court has already addressed the definition of
"cost of living" under EAJA. In Elcyzyn, 7 Vet.App. at 179-81, when determining what CPI-U to
use to calculate the cost-of-living adjustment under EAJA, the Court adopted the reasoning of
7
When discussing overhead costs, Mr. Speigner only addressed attorney Milo, not attorney Riley.
Appellant's Reply at 6-8. However, he explained that the overhead costs and cost of living relevant to attorney Milo
were identical to those for attorney Riley when she worked on the case in June 2016 for NVLSP. Id. at 6.
7
Sullivan v. Sullivan, 958 F.2d 574 (4th Cir. 1992), and Dewalt v. Sullivan, 963 F.2d 27 (3d Cir.
1992). In Sullivan, the U.S. Court of Appeals for the Fourth Circuit determined that, because "cost
of living" was not defined by EAJA, it assumed its commonly understood meaning – "the costs of
food, shelter, clothing, and other basic goods and services needed in everyday life." 958 F.2d at
576-77; see Dewalt, 963 F.2d at 29-30. In Elcyzyn, this Court subsequently determined that the
CPI-U for all items, as opposed to the CPI-U for personal services (which includes legal services),
should be used to measure the cost-of-living adjustment under EAJA. 7 Vet.App. at 180-81; see
Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992) (holding that, because "cost of living" is not
defined by EAJA, it should be given its "common, ordinary meaning" and is properly measured
by the CPI-U). The CPI-U for all items measures items that a consumer uses in everyday life, such
as clothing, food, transportation, household furnishings and operations, fuel and utilities, and
medical care. BUREAU OF LABOR STATISTICS, The Consumer Price Index, ch. 17 (Feb. 14, 2018),
available at www.bls.gov/opub/hom/pdf/homch17.pdf. And, in Parrott, the Federal Circuit
addressed the cost-of-living adjustment under EAJA and held that the CPI-U measures the costs
impacting "a consumer" and that this factor is the "very one EAJA seeks to account for in its cost
of living modifier." 851 F.3d at 1249 n.5 (internal quotation marks omitted); see Dewalt, 963 F.2d
at 29 (holding that EAJA's cost-of-living adjustment to award a fee in excess of the statutory limit
"takes into account the general purchasing power of money – the lawyer's cost of living as well as
the client's"). Contrary to Mr. Speigner's argument that the CPI-U of NVLSP's D.C. office should
be used because of the D.C. prices of business-related expenses, the CPI-U for all items does not
measure items related to business expenses. Id.Though it is correct that overhead costs are not separately recoverable under EAJA and are
recognized as a component of an attorney's fee, see Baldridge, 19 Vet.App. at 236, this does not
in turn lead to the conclusion that the maximum statutory fee under EAJA, which may be adjusted
to account for cost-of-living increases, is intended to specifically address the rising prices of an
attorney's overhead costs. EAJA set a maximum statutory fee for an attorney's legal services that
may be upwardly adjusted for an increase in "cost of living," a term whose commonly understood
meaning the Court has embraced, and the Court has determined that the cost-of-living adjustment
under EAJA is properly measured by the CPI-U for all items, which tracks the price changes of
items a consumer purchases in everyday life. See Elcyzyn, 7 Vet.App. at 180-81. Mr. Speigner
does not demonstrate how his definition of "cost of living," i.e., an attorney's overhead costs, is
8
consistent with Elcyzyn and the Court's standard of CPI-U selection based on where an attorney
works. See Parrott, 851 F.3d at 1245; see also Baldridge, 19 Vet.App. at 246; Mannino,
12 Vet.App. at 243.
Moreover, Mr. Speigner similarly fails in arguing that reading Baldridge and Parrott
together warrants a finding that the cost-of-living adjustment under EAJA is intended to
specifically address an attorney's overhead costs. Appellant's Reply at 10-11 (asserting that
overhead costs are part of an attorney's fee and that, under Parrott, the costs of living associated
with the work of attorney Milo were actually experienced in Washington, D.C.). Although the
Federal Circuit in Parrott was faced with different arguments, it did not focus on where overhead
costs to support the attorney's legal services were incurred, nor did it ask which office supplied the
attorney's computer or cell phone or where the administrative work was carried out. Parrott,
851 F.3d at 1249-50. The Federal Circuit cited favorably to its holding in Levernier Constr., Inc.
v. United States, 947 F.2d 497, 503 (Fed. Cir. 1991), noting that, because an attorney's rate is
"partially a function of his or her cost of living (among other things), . . . local price conditions can
serve as the ultimate barometer of an EAJA award." Parrott, 851 F.3d at 1250. The emphasis on
the impact of local price conditions on an attorney's cost of living was not based on the attorney's
overhead costs or business expenses. Id. Rather, the Federal Circuit explained, EAJA's
cost-of-living modifier focuses on the costs affecting a consumer and that the CPI-U, which
measures the costs of a consumer's purchases in day-to-day life, appropriately tracks the cost of
living under EAJA. Id. at 1249, n.5. Because Parrott determined that the CPI-U was the
appropriate method by which to measure the cost-of-living adjustment under EAJA, that case does
not support Mr. Speigner's argument that the cost-of-living adjustment specifically pertains to an
attorney's overhead costs.
Next, Mr. Speigner briefly argues that, in addition to the caselaw, the history of EAJA
supports his position that the cost-of-living adjustment is intended to address an attorney's
overhead costs. Appellant's Reply at 10. He states that overhead costs have been "part of the
equation in calculating attorneys' fees from the inception of the EAJA" and quotes the testimony
of a representative of the American Bar Association, made during a subcommittee hearing in 1982,
who stated:
An effort to reduce the $75 limit down to something that is equated to salary divided
into an hourly basis that is paid to Government attorneys is a mistake. This is not
a basis for comparability. If you were to take that salary and add onto it the
9
overhead represented by the cost of support services, rent, utilities, and all those
things, alone, it would go way up. The mistake, on the part of some people, is to
believe that whatever the hourly rate charged by lawyers is 100 percent profit.
Hearing on the Equal Access to Justice Act Before the Subcomm. on Agency Administration of the
S. Comm. on the Judiciary, 97th Cong. 213 (1982) (testimony of John S. Pachter, Chairman,
Federal Contract Claims and Remedies Committee, Section of Public Contract Law, American
Bar Association).
However, again, the caselaw is clear that the maximum statutory fee does not pertain to
where an attorney's overhead costs are incurred, but where an attorney works. See Parrott,
851 F.3d at 1249-50; Baldridge, 19 Vet.App. at 246; Mannino, 12 Vet.App. at 243; Elcyzyn,
7 Vet.App. at 181. Additionally, using the standard of CPI-U selection suggested by Mr. Speigner
may place a significant burden on the EAJA applicant – the individual intended to be assisted by
EAJA to recover his costs to secure counsel – and on the Court. See EAJA, Pub. L. No. 96-481,
§ 202, 94 Stat. 2325 (1980) (describing EAJA's purposes). For example, the standard may require
an EAJA applicant (albeit likely through his or her attorney) to exhaustively search business
records and the receipts of an attorney's office to compile a list of overhead costs incurred by that
office. Such an onerous requirement would undermine EAJA's purpose, which is to ensure that
persons not be "'deterred from seeking review of, or defending against, unreasonable governmental
action because of the expense involved in securing the vindication of their rights.'" Sullivan
v. Hudson, 490 U.S. 877, 883 (1989) (quoting Pub. L. No. 96-481, 94 Stat. 2325 (1980)). A request
for attorney fees should not result in a second major litigation. See Pierce v. Underwood, 487 U.S.
552, 563 (1988) ("[A] 'request for attorney's fees should not result in a second major litigation.'"
(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983))).
In sum, we find that selection of a CPI-U based solely on where overhead costs are incurred
is not supported by our caselaw adopting the common, ordinary definition of "cost of living" and
using the CPI-U based on where an attorney works to calculate the cost-of-living adjustment under
EAJA. See Parrott, 851 F.3d at 1245; Mannino, 12 Vet.App. at 243; Elcyzyn, 7 Vet.App. at 181.
A CPI-U selection based solely on where overhead costs are incurred would ignore the Court's
own precedent, and would potentially be overly burdensome to an EAJA applicant and frustrate
EAJA's purpose to assist litigants in bringing lawful claims against the Government. See EAJA,
Pub. L. No. 96-481, § 202, 94 Stat. 2325 (1980) (describing EAJA's purposes). Therefore, we
10
reiterate that, in the case of a teleworking attorney who works on a case in his or her residence, the
CPI-U of the location of the attorney's residence must be used.
C. Application of Law to Facts
In light of this discussion, to calculate the cost-of-living adjustment under EAJA to
determine the proper attorney fees, the Court will use the CPI-Us of the locations where attorneys
Milo and Riley worked.8 The Secretary requests that the Court award the statutory hourly fee of
$125 per hour for attorneys Milo and Riley; however, we disagree because Mr. Speigner provided
the relevant CPI-Us in his reply to the Secretary's response. Cf. Parrott v. McDonald, 2015 WL
5948165, at *4 (U.S. Vet. App. Oct. 14, 2015) (order) (applying the $125 statutory rate where the
appellant failed to provide the CPI-U information for the three locations where her attorney
performed work), aff'd, Parrott, 851 F.3d at 1253 ("We know of no controlling authority . . . that
requires a court to sua sponte request and accept amended EAJA applications, after judgment, on
facts similar to those in this case. Accordingly, we see no legal error in the Veteran[s] Court's
ruling [that the $125 statutory rate applies]."). Attorney Milo worked on the case in her residence
in Swedesboro, New Jersey, and attorney Riley worked on the case in her residence in Charlotte,
North Carolina. Appellant's Reply at 6. Applying the CPI-U for Philadelphia-Camden-
Wilmington, PA-NJ-DE-MD, to attorney Milo's legal services, results in an hourly fee of $191.68
for 20.5 hours; and the appellant is entitled to recover $3,929.44. Applying the CPI-U for the
South-Size Class B/C, all urban consumers, to attorney Riley's legal services, results in an hourly
fee of $187.50 for .4 hours; and the appellant is entitled to recover $75.9 The Court therefore
grants the EAJA application in the reduced amount of $11,390.65.
8
The Secretary does not contend that Mr. Speigner's EAJA application does not meet the other statutory
requirements set forth in 28 U.S.C. § 2412(d). The appellant is a prevailing party, has shown that he is a party eligible
for an award because his net worth does not exceed $2,000,000, has alleged that the Secretary's position was not
substantially justified, and included an itemized statement of the attorney fees and expenses. Id.; see EAJA
Application. The Secretary also does not oppose the hours requested and the Court finds that the hours requested are
reasonable. McCormick v. Principi, 16 Vet.App. 407, 413 (2002); see Chesser v. West, 11 Vet.App. 497, 501 (1998)
("The Court has wide discretion in the award of attorney fees under the EAJA.").
9
Appellant's Reply at 13-14; Exhibits C and D.
11
III. CONCLUSION
Upon consideration of the foregoing and the pleadings in this matter, Mr. Speigner's EAJA
application is GRANTED, IN PART, in the reduced amount of $11,390.65 for attorney fees and
expenses.
12