Kenneth Haselwander v. John M. McHugh, Sec. of the Army

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Issued May 8, 2015
No. 12-5297
KENNETH HASELWANDER,
APPELLANT
v.
JOHN M. MCHUGH, SECRETARY OF THE ARMY,
APPELLEE
On Motion for Costs and for Attorney’s Fees
Pursuant to the Equal Access to Justice Act
Before: GRIFFITH, Circuit Judge, PILLARD, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
JUDGMENT
PER CURIAM: Upon consideration of the amended motion
for costs and attorney’s fees, styled as “Errata EAJA
Application,” the opposition thereto, and the reply; and
appellant’s notice in response to the court’s order, ECF No.
1548628, it is
ORDERED and ADJUDGED that appellant’s request
for costs is denied because the application was filed beyond
the 14-day deadline pursuant to Federal Rule of Appellate
Procedure 39(d)(1). It is
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FURTHER ORDERED AND ADJUDGED that
appellant’s request for attorney’s fees is granted in part and
denied in part for the reasons explained herein below.
On December 19, 2014, this court issued a decision
vacating the order of the Army Board for Correction of
Military Records (“Board”) and remanding the case to the
District Court with instructions to remand to the Board to
consider whether to correct errors in Haselwander’s military
record preventing him from eligibility for the Purple Heart.
Haselwander v. McHugh, 774 F.3d 990 (D.C. Cir. 2014). The
mandate in this case was issued on February 12, 2015.
Counsel filed a Motion for fees and costs on March 6, 2015,
and filed an amended Motion on March 9. He seeks
$33,780.27 in attorney’s fees and $3,981.09 in costs.
Appellant’s motion for costs and fees rests on the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, which
provides attorney’s fees and costs to an eligible prevailing
party in an action against a United States official or agency,
unless the Government can show that its position was
“substantially justified.” Id. § 2412(d)(1)(A). In assessing the
merits of this case, the court determined “that the Board’s
decision defies reason and is devoid of any evidentiary
support. We therefore vacate[d] the decision because it is
arbitrary and capricious.” Haselwander, 774 F.3d at 992.
There is no doubt that the Government’s position in this case
was not substantially justified. Therefore, the only issues
before the court are whether the applications for costs and
fees were timely, whether Mr. Haselwander is an eligible
party for fees under EAJA, and whether the request for fees
should be reduced because it is excessive or inadequately
documented.
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****
Appellant’s request for costs must be rejected because it
is untimely. Rule 39 provides that “[c]osts for or against the
United States, its agency, or officer will be assessed under
Rule 39(a) only if authorized by law.” Fed. R. App. P. 39(b).
In order to have costs taxed, a party must file with the circuit
clerk “an itemized and verified bill of costs” “within 14 days
after entry of judgment.” Id. 39(d)(1). EAJA is an express
waiver of the United States’s sovereign immunity, and as such
it “must be construed strictly in favor of the sovereign and not
enlarged beyond what the language requires.” Ruckelshaus v.
Sierra Club, 463 U.S. 680, 685 (1983) (internal quotation
marks, citations, and alterations omitted). EAJA satisfies the
requirement in Rule 39(b) that “[c]osts . . . against the United
States, its agency, or officer will be assessed under Rule 39(a)
only if authorized by law.” Rule 39, however, and not EAJA,
provides the procedural requirements for an application for
costs.
EAJA provides, “[e]xcept as otherwise specifically
provided by statute, a judgment for costs, as enumerated in
section 1920 of this title, but not including the fees and
expenses of attorneys, may be awarded to the prevailing party
. . . .” 28 U.S.C. § 2412(a)(1). EAJA contains a separate
provision for obtaining “fees and other expenses, in addition
to any costs awarded pursuant to subsection (a)” that are
incurred in “proceedings for judicial review of agency action,
. . . unless the court finds that the position of the United States
was substantially justified.” Id. § 2412(d)(1)(A). The
procedural provisions of EAJA, which include the 30-day
filing deadline, only apply to “[a] party seeking an award of
fees and other expenses.” Id. § 2412(d)(1)(B).
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Thus, sub-section (d)(1)(A) of EAJA provides a
mechanism for a party to apply for “fees and other expenses”
that is separate and “in addition to” an application for costs
under subsection (a)(1). “‘[F]ees and other expenses’ includes
the reasonable expenses of expert witnesses, the reasonable
cost of any study, analysis, engineering report, test, or project
which is found by the court to be necessary for the
preparation of the party’s case, and reasonable attorney fees
. . . .” Id. § 2412(d)(2)(A). The omission of “costs awarded
pursuant to subsection (a)” from sub-paragraph (d)(1)(B),
which sets the 30-day time limit, indicates that the 30-day
limit applies only to an application for attorney’s fees and
expenses. The statute does not provide a similar time limit for
an application for costs, thus the 14-day time limit in Federal
Rule of Appellate Procedure 39 applies and bars
Haselwander’s application for costs.
****
EAJA defines a “party” for purposes of the Act as “an
individual whose net worth did not exceed $2,000,000 at the
time the civil action was filed.” 28 U.S.C. § 2412(d)(2)(B).
The Government argues that Haselwander’s fee claim should
be rejected because there is no “evidence” that Haselwander
is worth less than $2 million. We disagree. The record in this
case is adequate to show that Haselwander’s net worth is less
than $2 million. In addition to counsel’s uncontested
statement to this effect on behalf of his client, the record also
includes a letter from Haselwander to Senator Lugar, in which
he says, “My wife and I are just mid-level State of Indiana
employees, and we cannot afford to pay for the current very
high costs of college educations.” Joint Appendix 80. Nothing
more is necessary. See, e.g., Hirschey v. FERC, 760 F.2d 305,
309 n.19 (D.C. Cir. 1985) (holding that “record documents”
may show that a plaintiff “meets the financial qualifications
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specified in 28 U.S.C. § 2412(d)(2)(B)”); Sosebee v. Astrue,
494 F.3d 583, 589 (7th Cir. 2007) (same).
Appellant is a “prevailing party” in this case. See, e.g.,
Shalala v. Schaefer, 509 U.S. 292, 298–302 (1993) (holding
that a petitioner who obtains reversal of an administrative
order denying benefits is a prevailing party even if she has not
yet successfully obtained the relief she sought from the
agency). He is therefore eligible for attorney’s fees. His
request for fees, however, is excessive.
Appellant’s counsel bases his request for fees on a total
of 64.08 billable hours expended in this case, at a rate of
$712.66 for himself and $464.78 for an associate. EAJA,
however, caps attorney’s fees at $125 per hour. 28 U.S.C. §
2412(d)(2)(A). The court may adjust the rate upwards for cost
of living and “special-factor enhancement[s],” see Role
Models Am., Inc. v. Brownlee, 353 F.3d 962, 968 (D.C. Cir.
2004), but only a cost-of-living adjustment is applicable here.
Appellant’s fee request lacks adequate documentation
and fails to fully justify the number of hours sought. For
example, too many time records lack adequate detail. See In
re Sealed Case, 890 F.2d 451, 455 (D.C. Cir. 1989) (per
curiam) (“[W]e note numerous instances of documentation
and specification that do not adequately describe the legal
work for which the client is being billed. This makes it
impossible for the court to verify the reasonableness of the
billings, either as to the necessity of the particular service or
the amount of time expended on a given legal task.”). This is
unacceptable. Role Models, 353 F.3d at 973–74. “Where the
documentation of hours is inadequate, [a] court may reduce
the award accordingly.” Id. at 973 (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). Accordingly, the hours
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eligible for fees in this case will be reduced by a third to
account for these deficiencies. See, e.g., id.
The fee request is also excessive because it includes
enhancements that are not authorized under applicable law.
The proper rate for the eligible billable hours is $125, sans
enhancements, with the rate adjusted for the cost of living in
the Washington, D.C. area in the years that the work hours
were performed. After the reduction in hours and adjustments,
the total amount of fees awarded is $7,981.41.
The Government concedes that the appropriate fee rate is
the statutory rate under EAJA, $125 per hour, adjusted by the
increase in the Consumer Price Index (“CPI-U”) for the
Washington, D.C. area. Appellee’s Opp’n to Appellant’s
Application for Attorney’s Fees and Costs 12–13. The rate of
the adjustment is calculated by dividing the CPI-U for the
year the services were rendered, by the baseline CPI-U in the
year that Congress set the $125 per hour cap. See Role
Models, 353 F.3d at 969; Porter v. Astrue, 999 F. Supp. 2d
35, 41 (D.D.C. 2013). That year was 1996. See Contract with
America Advancement Act of 1996, Pub. L. No. 104-121, 100
Stat. 847 (1996).
The following table shows the calculation for the
adjusted rate and the number of billable hours for each year.
See Porter, 999 F. Supp. 2d at 40 (using yearly regional
consumer price index rather than monthly). The baseline CPI-
U – the consumer price index in 1996 – is 100. Id. at 41. The
table indicates the consumer price indexes for the years 2010
to 2014 reported in the Bureau of Labor Statistics Summary
of Annual and Semi-Annual Indexes, available at the
www.bls.gov website. The cost-of-living adjustment for each
year is determined by dividing the CPI-U in the year the
services were rendered by the baseline of 100. The resulting
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multiplier is then applied to the statutory rate of $125 to
determine the adjusted hourly rate for each of the years
counsel performed billable work. Additionally, the hours
requested by appellant are reduced by the fixed percentage of
a third, to account for the aforementioned deficiencies in the
fee application. The table shows the billable hours in each
year recorded by appellant in his application, see Application
for Attorney’s Fees Ex. A, and multiplies the number of hours
by 0.66. The reduced number of hours is then multiplied by
the adjusted hourly rate for the year.
Year Statutory CPI-U Adjusted Hours Adjusted
Services Hourly Adjustment Hourly Billed Rate
Rendered Rate for Year. Rate (reduced Multiplied
by 1/3) by
Hours
Billed
2010 $125/hr 142.22/100 $177.50 2.3*.66 $269.80
= 1.42 = 1.52
2011 $125/hr 146.98/100 $183.75 11.5*.66 $1,394.66
= 1.47 = 7.59
2012 $125/hr 150.21/100 $187.50 15.7*.66 $1,942.50
= 1.50 = 10.36
2013 $125/hr 152.5/100 $191.25 28.45*.6 $3,589.76
= 1.53 6 =
18.77
2014 $125/hr 154.85/100 $193.75 6.13*.66 $784.69
= 1.55 = 4.05
Total fees awarded: $7,981.41
Appellant seeks a “special-factor enhancement”
justifying a rate in excess of the statutory $125 per hour
limitation. See Role Models, 353 F.3d at 968. This court in
Role Models explained that the Supreme Court in Pierce v.
Underwood, 487 U.S. 552, 572 (1988), “made clear” that a
special factor “increase in the cap is justified only by work
requiring specialized skills or knowledge beyond what
lawyers use on a regular basis.” 353 F.3d at 969. Here,
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although counsel helped to achieve a good result for his client
and the case arose from a special military board, this case, as
was true with Role Models, is a “garden-variety
administrative law matter.” Id. No special enhancement in
fees is due.
Finally, appellant’s fee request also appears to adopt the
so-called Laffey Matrix to enhance fees for counsel’s
experience. The Matrix, which has been prepared by the Civil
Division of the United States Attorney’s Office for the
District of Columbia, is based on the hourly rates allowed in
Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C.
1983), aff’d in part, rev’d in part on other grounds, 746 F.2d
4 (D.C. Cir. 1984), and it sets forth hourly rates for attorneys
of varying experience. United States Attorney’s Office, Laffey
Matrix – 2003-2014. It is understood, however, that this
Matrix does not apply in cases in which the hourly rate is
limited by statute, as is so with EAJA. 28 U.S.C. § 2412(d).
See, e.g., Role Models, 353 F.3d at 968–69 (making it clear
that the statutory cap trumps with respect to fee requests
under EAJA).
In light of the foregoing findings, it is hereby
ORDERED that appellant shall be awarded attorney’s
fees in the amount of $7,981.41.