Porter v. Astrue

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SARAH A. PORTER,

Plaintiff,
v. Civil Action No. 11-2304 (JEB)
MICHAEL J. ASTRUE,

Defendant.

MEMORANDUM OPINION

Plaintiff Sarah Porter applied for supplemental security income (SSI) benefits on April

13, 2006, alleging that she had become disabled from a car accident that affected her ability to

stand and caused her constant pain. See Porter v. Colvin (Porter I), No. 11-2304, 2013 WL

3244808, at *1 (D.D.C. June 28, 2013). After being denied benefits, she sued the Commissioner

of the Social Security Administration. See id. This Court ultimately adopted the Report and

Recommendation of Magistrate Judge Alan Kay and remanded the case to the SSA for further

proceedings because the SSA had not placed proper weight on Plaintiff’s “subjective statements

regarding her symptoms,” the “medical records in [the] case,” and the “opinions of Plaintiff’s

treating sources.” See id. at *3.

Plaintiff’s counsel now move for an award of attorney fees pursuant to the Equal Access

to Justice Act (EAJA), which “directs a court to award ‘fees and other expenses’ to private

parties who prevail in litigation against the United States if, among other conditions, the position

of the United States was not ‘substantially justified.’” Commissioner, INS v. Jean, 496 U.S. 154,

155 (1990) (quoting 28 U.S.C. § 2412(d)(1)(A)). The parties here have agreed that Plaintiff is a

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prevailing party entitled to some fees and costs and that the Government’s position in the

litigation was not substantially justified. See Mot. at 2; Opp. at 1; Jean, 496 U.S. at 155-56. Yet

despite this agreement, the exact amount due remains in dispute. The Government advocates for

fees and costs of at most $6,603.64, while Plaintiff, after considering the Government’s position,

requests a total of $11,694.01. See Opp. at 9; Reply at 7. Having waded through the multitude

of issues presented in this fee-calculation exercise, the Court concludes Plaintiff is entitled to

$9,782.96.

I. Analysis

In determining the proper amount of fees and costs, the Court must consider no fewer

than six separate issues: whether a cost-of-living adjustment is warranted, the appropriate

Consumer Price Index to use, the correct cost-of-living measure, the baseline for the CPI

measurement, the number of hours that are reasonable, and the costs involved. Only after these

determinations are made will the Court be in a position to multiply the correct number of hours

by the appropriate hourly rate to arrive at the amount of fees owed, to which costs may then be

added. The Court will address each issue in turn.

A. Adjustment for the Cost of Living

Attorney fees under the EAJA have been capped by Congress; as of March 29, 1996, this

statutory cap was placed at $125 per hour “unless the court determines that an increase in the

cost-of-living . . . justifies a higher fee.” 28 U.S.C. § 2412 (d)(2)(A). Courts have often found

that an increase in the statutory cap is warranted where the cost of living has increased relative to

the cap. See, e.g., Role Models America, Inc. v. Brownlee, 353 F.3d 962, 969 (D.C. Cir. 2004)

(granting cost-of-living adjustment where Consumer Price Index had increased 14.6% relative to

cap); Cooper v. R.R. Retirement Bd., 24 F.3d 1414, 1417 (D.C. Cir. 1994) (increasing statutory

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rate where CPI had increased by 51.8% relative to cap); Hirschey v. FERC, 777 F.2d 1, 5 (D.C.

Cir. 1985); Nat’l Law Ctr. on Homelessness and Poverty v. U.S. Dep’t of Veterans Affairs, 799

F. Supp. 148, 157 n.10 (D.D.C. 1992).

Plaintiff, in support of an upward departure from the statutory rate, points to the CPI in

Washington, D.C., which has risen by more than 52% since Congress increased the hourly cap in

1996. See Reply at 2. The Government responds by citing two cases it claims support the

position that statutory fees are adequate here. See Opp. at 3-4. Neither, however, directly

addressed the issue of the cost of living; instead, they struck down fee increases based on the

particularized knowledge of an attorney. See Truckers United for Safety v. Mead, 329 F.3d 891,

896-97 (D.C. Cir. 2003); In re Sealed Case 00-5116, 254 F.3d 233, 235-36 (D.C. Cir. 2001).

Given that the cost of living here has risen significantly since the statute was enacted, and that

the statute itself expressly provides for cost-of-living adjustments, the Court concludes that an

increase is proper.

B. Local, Regional, or National Consumer Price Index

Having decided to account for a rise in the cost of living, the Court must next determine

whether to use a local, regional, or national CPI, all of which measure inflation from a baseline

of $100 at a set starting date. Plaintiff urges the Court to use the market rate for the “relevant

community,” which, Plaintiff claims, is “the one in which the district court sits.” Reply at 3

(citing Donnell v. United States, 682 F.2d 240, 251 (D.C. Cir. 1982)); see also Pereira v. Astrue,

739 F. Supp. 2d 267, 272 (E.D.N.Y. 2010) (adjusting using CPI for the “relevant community”).

Plaintiff thus requests the regional CPI for DC-MD-VA-WV, while Defendant argues for the

national CPI.

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 As observed by the court in Mannino v. West, 12 Vet. App. 242 (Vet. App. 1999), there

has been a “split of authority” on the question of which CPI to use. Id. at 243. Those advocating

for use of a local or regional CPI conclude that “in view of the diverse nature of various cities’

and regions’ economies,” the “fairer course” is to use the cost of living “actually experienced” by

the applicant. Cox Cost. Co. v. United States, 17 Cl. Ct. 29, 37 (1989). Those courts recognize

that using a local or regional CPI avoids the pitfalls of using the national CPI: “(1) Depriving an

attorney of the actual increase in the CPI where he works when that increase (if measured locally

or at least regionally) is greater than the increase in the national CPI; or (2) creating a windfall

where the national CPI increase is greater than either the applicable local or regional CPI

increase.” Mannino, 12 Vet. App. at 243. On the other side of the argument are those who point

to the statutory language allowing for adjustment based on the cost of living, not a cost of living.

See Jawad v. Barnhart, 370 F. Supp. 2d 1077, 1085 (S.D. Cal. 2005).

It appears that most of the courts in the circuit use the regional CPI, regardless of the fact

that it is published only bi-monthly. See Wilkett v. ICC, 844 F.2d 867, 875 (D.C. Cir. 1988)

(noting regional cost of living increased 27.77% and increasing cap by this amount); Hirschey,

777 F.2d at 5 n.24 (noting regional cost of living increased 19.6% and increasing cap by this

amount); Nat’l Ass’n of Mfrs. v. Dept. of Labor, 962 F. Supp. 191, 198 (D.D.C. 1997) (using

regional CPI); Masonry Masters, Inc. v. Nelson, 105 F.3d 708, 710 (D.C. Cir. 1997) (citing

Wilkett, but not noting which CPI was used).

This Court, therefore, will use the regional CPI in calculating the fees owed to Plaintiff,

as it most accurately reflects the increase in the cost of living experienced by the attorneys in this

particular region. See Cox, 17 Cl. Ct. at 37.

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 C. Yearly or Monthly Cost-of-Living Adjustments

Now that the Court has settled on the regional CPI, there is still a debate over whether to

adopt a yearly CPI or to calculate the rate for each month and apply the rate to the work done in

that month. The Government suggests using the annual CPI for the year 2012 in performing

calculations for work done in that year, and it takes the average of May and June’s CPI

(presumably because these were the months in which work was done) for work completed in

2013. See Opp. at 4. Plaintiff, in contrast, calculates the cost-of-living adjustment for each

month in which work was billed based on the corresponding CPI for that month and then applies

it to the hours billed for that month. See Reply at 4.

There has again been some variation in how courts proceed on this matter. Those using

the yearly rate often state that the monthly calculation is “unnecessarily burdensome.” Jawad,

370 F. Supp. 2d at 1090. One court weighed the cost of using a single multiplier for the entire

year (which could result in “material inaccuracies”) with that of using a monthly multiplier

(which could result in an “unwarranted” level of computational difficulty), ultimately deciding

that using the yearly multiplier “strike[s] a reasonable balance between accuracy and ease of

calculation.” Gates v. Barnhart, 325 F. Supp. 2d 1342, 1347 (M.D. Fla. 2002). Other courts

have similarly not broken down rates on a month-by-month basis, although some have opted for

different ways of arriving at the yearly rate. See Conservation Force v. Salazar, 916 F. Supp. 2d

15, 26 (D.D.C. 2013) (using CPI rate “in a certain month of that year,” instead of month-by-

month, although attorneys had not broken out hours, even by year); Nat’l Ass’n of Mfrs., 962 F.

Supp. at 198 (using approximate month and year when services were rendered); Wilkett, 844

F.2d at 875 (using the month in which “most of the work was done” to calculate the adjusted

rate); Nong v. Reno, 28 F. Supp. 2d 27, 30 (D.D.C. 1998) (stating it used the “month when the

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services were rendered,” but instead using the last month of the year in which services were

rendered).

At least one court has rejected the yearly calculation where the monthly CPI is available,

though that court also could not seem to find any authority rejecting the monthly adjustments

proposed by counsel. See Chargois v. Barnhart, 454 F. Supp. 2d 631, 635 (E.D. Tex. 2006). In

Chargois, the court balanced the argument that the monthly method was “de trop,” and that “the

court [was] unaware of anyone else who [was] fortunate enough to receive cost-of-living

adjustments more often than annually” with the notion that though it was more tedious, the

monthly method “does no violence” to congressional intent to provide the cost-of-living

adjustment, is more precise, and is “even-handed” because these monthly calculations “are just

as likely to produce a lower fee as a higher fee.” Id. A quick glance at the table provided by

Plaintiff (missing every other month) demonstrates this fact — the regional CPI for each period

of course dances around the yearly average of $150.212. See Reply, Exh. A; Summary of

Annual and Semi-Annual Indexes, available at http://www.bls.gov/ro3/fax_9125.htm. Other

courts have followed this monthly CPI system without complaint as to the difficulty of

calculation. See Gonzalez v. United States, 44 Fed. Cl. 764, 771 (1999) (calculating fee cap for

each individual month); JGB Enterprises, Inc. v. United States, 83 Fed. Cl. 20, 33 (2008).

Given the low number of hours billed by both Plaintiff attorneys in each month and the

close relationship of each monthly CPI to the annual CPI, it seems unnecessary to break this

calculation down into monthly determinations. See Reply, Exh. C (for instance, Michael

Eisenberg billed only 0.1 hours in April, May, and June of 2012). To calculate the adjustment

for each attorney for each month does not seem to strike the balance that Gates sought in using

the yearly calculation – that is, it creates a burden on the court without any outsized impact on

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the funds ultimately paid. The yearly regional CPI of $150.212 will therefore be used for 2012.

See Summary of Annual and Semi-Annual Indexes, available at

http://www.bls.gov/ro3/fax_9125.htm. For 2013, the Court will maintain consistency in

attempting to use as close to a yearly average as possible, unlike the methodology used by

Defendant (who averaged only the two months in which work was billed). Courts have held that

where a yearly CPI is not available, the court is to average the months for which a CPI is

available. See Jawad, 370 F. Supp. 2d at 1091; Knudsen v. Barnhart, 360 F. Supp. 2d 963, 974

(N.D. Iowa 2004); Gates, 325 F. Supp. 2d at 1347. This Court will therefore use the regional

average of the available months of 2013, $151.798, for hours billed in 2013. See Summary of

Annual and Semi-Annual Indexes.

D. Baseline Measurement

The next step is to determine the baseline by which the regional CPI — i.e., $150.212 for

2012 and $151.798 for 2013 — should be divided, thereby providing a multiplier for the $125

statutory cap to reach the adjusted hourly rate. Common sense might seem to dictate $100 as the

baseline, but that is not automatically the case. Although Congress amended the EAJA to

provide the $125 hourly rate in March of 1996, the regional CPI began at $100 in November of

1996, when the CPI was first calculated. If the calculation here begins earlier than November of

1996, the baseline amount decreases; if it starts later, the number increases.

Both Defendant and Plaintiff suggest using March of 1996, the month that the EAJA was

amended to set the new baseline $125 hourly rate. See Opp. at 4; Reply at 4. Although some

courts have used October 1981 — the month of the EAJA’s original enactment — as a baseline,

see, e.g., Nelson, 105 F.3d at 710; Nat’l Ass’n of Mfrs., 962 F. Supp. at 198; Hirschey, 777 F.2d

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at 5, given the parties’ agreement on March 1996, the Court will accede to this approach and

avoid further complexity.

There is a slight problem, however: the regional CPI for March 1996 is not available.

See Reply at 4 n.1. Plaintiff suggests using an extrapolation based on the percentage change in

the national CPI between March 1996 and November 1996, the latter being the first month for

which there is regional CPI data. See id. (yielding a baseline figure of $98.18). This approach

seems unnecessarily complicated. At least two courts suggest simply using the CPI for the

following month. See Shu Chen v. Slattery, 842 F. Supp. 597, 601 (D.D.C. 1994) (using

November, when October was unavailable); Nat’l Ass’n of Mfrs., 962 F. Supp. at 198 n.14

(following Shu Chen by using the CPI figure for November, when October 1981 not available).

In the case at hand, starting with March 1996, the “next month” with data according to Plaintiff’s

chart is November 1996, which, as already discussed, carries a regional CPI of $100. See Reply,

Exh. A.

Given that both parties are in agreement on the March 1996 date and that it appears that

some courts (though not many within the D.C. Circuit) rely on this date as a baseline, the Court

will concur and use the “next month” of November. The baseline is therefore $100.

Based on the foregoing, the Court then takes the statutory rate, multiplies it by the

regional CPI from the relevant time period, and then divides by the baseline rate as follows:

Billable rate for 2012 = $125 x $150.212 / $100 = $187.765

Billable rate for 2013 = $125 x $151.798 / $100 = $189.748

E. Reasonable Hours Billed

Now that the rate has been determined, the Court must calculate the time reasonably

billed. As there is some dispute as to how many hours each of Plaintiff’s two attorneys may

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appropriately bill here, the Court will consider Ms. Schabacker’s and Mr. Eisenberg’s hours

separately.

Plaintiff requests a total of 35.1 billable hours for Ms. Schabacker, while Defendant

believes she merits 30.1 hours. See Reply at 5; Opp. at 6 (“DeAnna Schabacker has 16.4

compensable hours in 2012 and 13.7 compensable hours in 2013.”). By calculations based on

Plaintiff’s Reply Exhibit C, however, it seems that Ms. Schabacker is actually due, according to

Plaintiff’s chart, 36.5 billable hours (an undisputed 16.4 hours billed in 2012 and 13.7 billable

hours in 2013 plus a disputed 6.4 hours billed in 2013). See Reply Exh. C at 1. This leaves a

balance of 6.4 hours of Ms. Schabacker’s in dispute, which is billed as “reply to agency’s

response to EAJA fee application”. Id. These hours have not been addressed by the

Government, as they were billed after it filed the Opposition. Plaintiff asserts that Counsel has

incurred “well over eight additional hours of billable time” to prepare the Reply, but has reduced

the amount to 6.4 hours, apparently in anticipation of pushback by Defendant. See Reply at 5.

“[A]n applicant is only entitled to an award for time reasonably expended,” and the fee

application must contain “sufficiently detailed information . . . about the work done.” Hawaii

Longline Ass’n v. Nat’l Marine Fisheries Serv., No. 01-765, 2004 WL 2239483, at *2 (D.D.C.

Sept. 27, 2004) (citing Nat’l Assoc. of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319,

1327 (D.C. Cir. 1982)); see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“The district

court also should exclude from this initial fee calculation hours that were not ‘reasonably

expended.’”). To determine whether fees are reasonable, “courts ordinarily focus on two

questions: (1) whether the attorneys charged a reasonable hourly rate and (2) whether the time

attorneys logged on the case was reasonable – i.e., did the attorneys waste or otherwise

unnecessarily spend time on the matter.” In re Donovan, 877 F.2d 982, 990 (D.C. Cir. 1989).

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The Court, furthermore, has “wide discretion in reducing individual fee entries.” Baldridge v.

Nicholson, 19 Vet. App. 227, 241 (2005) (reducing billable hours by a total percentage, rather

than particular hours); but see Giron v. Shinseki, No. 09-3251, 2012 WL 4856943, at *3 (Vet.

App. Oct. 15, 2012) (reducing each disputed line item by particular amount).

How much of a reduction, if any, should the Court impose on Ms. Schabacker’s hours?

The court in Hensley notes that “[t]here is no precise rule or formula for making [reduction]

determinations . . . . The court necessarily has discretion in making this equitable judgment.”

461 U.S. at 436-37. Hensley then outlines two methods of reducing fees to reflect the proper

amount of work awardable: eliminating the fees for those hours spent on unsuccessful claims that

are wholly separate from successful claims, or calculating a general reduction for those

unsuccessful claims related to successful claims. See id.; see also Commissioner, INS v. Jean,

496 U.S. 154, 163 n.10 (1990) (holding that the Hensley analysis applies to “fees-on-fees”

recovery claims).

Plaintiff’s Reply regarding fees and costs was partly unsuccessful. The Court rejected

her arguments for a monthly calculation of fees owed, as well as the baseline value to use, and,

as the Court will shortly detail, she has not entirely prevailed in her position on Lexis costs

owed. While the Court will take into consideration Plaintiff’s assertion that Ms. Schabacker has

in reality spent upwards of eight hours on the Reply, while billing only 6.4 hours, it will lower

this number further to account for the fact that some of that time was spent on ultimately

unsuccessful claims. As it stands, the disputed 6.4 hours apparently account for the extensive

calculations required in determining a monthly adjustment for billable hours, as well as the

extrapolation used to arrive at an engineered CPI for the March 1996 baseline (taking up ¾ of a

page in her Reply). See Reply at 4. Plaintiff also spends a page of her seven-page Reply dealing

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with whether or not researching costs are awardable generally, rather than addressing

Defendant’s argument that the bill lacked sufficient clarity regarding the costs. See Reply at 6-7.

In light of the foregoing, the Court will reduce the disputed hours from 6.4 to 4.0 hours total,

given that the Reply still succeeded in arguing for a cost-of-living adjustment and a regional CPI,

and because Ms. Schabacker still had to draft the brief. The total number of billable hours for

Ms. Schabacker thus is 34.1 hours.

Applying the yearly per-hour rates to these billable hours yields $3,079.35 billed in 2012

(16.4 hours x $187.765 per-hour), and $3,358.54 (17.7 hours x $189.748 per-hour) in 2013 for a

total of $6,437.89.

Plaintiff additionally seeks 5.5 billable hours for Mr. Eisenberg, while Defendant will

concede only 3.6 hours. See Reply at 5; Opp. at 7 (2.9 compensable hours in 2012 and .7

compensable hours in 2013). It seems, however, that Defendant has also conceded 1.0 hour of

time spent preparing the original EAJA application, bringing the Government’s total requested

billable hours up to 4.6. See Opp. at 7. The disputed .9 hours is billed for work spent on EAJA

fee calculations. The question, then, is whether 1.9 hours is a reasonable amount of time to have

spent on the Motion. Given that the bulk of the original EAJA fee pleading was based on what

Defendant characterizes as an “apparent misunderstanding or lack of awareness of the EAJA law

on special factor adjustments for hourly rates,” and that over one quarter of the brief was spent

on lodestar considerations, rather than discussing cost-of-living adjustments, a reduction in time

billed is warranted. See ECF 28; Opp. at 7. A reduction to 1.0 hour accounts for the valid

arguments made and required to be made by Plaintiff regarding a showing that the Government

was not substantially justified in its position. See Mot. at 1; Reply at 5-6.

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 4.6 billable hours are therefore attributable to Mr. Eisenberg. Once again applying the

adjusted hourly rate to the hours billed, Plaintiff is entitled to $544.52 in 2012 (2.9 hours billed x

$187.765) and $322.57 in 2013 (1.7 hours billed x $189.748) for a total of $867.09.

When added to Ms. Schabacker’s 34.1 hours, Plaintiff is entitled to fees for 38.7 billable

hours (19.3 hours in 2012, and 19.4 hours in 2013) or $7,304.98.

F. Costs

It is undisputed that a plaintiff may receive an award of costs for legal research; the issue

at hand is how much of this cost the Government must pay. See, e.g., Hirschey, 777 F.2d at 6

(holding computer-research charge compensable); Norton, 407 F. Supp. 2d at 165 (awarding

costs of $356.68 for Lexis research); Nat’l Veterans Legal Services Program v. Dep’t of

Veterans Affairs, No. 96-1740, 1999 WL 33740260, at *6 (D.D.C. April 13, 1999) (awarding

$1,424.87 for computerized legal research upon a finding from Judge Facciola that “plaintiff had

sufficiently explained to defendant the purposes of such costs” and that they were reasonable).

Defendant (correctly) argued originally that Plaintiff had not adequately enumerated the

costs sought in a reasonable manner, but Plaintiff appears to have somewhat corrected this

mistake by providing Reply Exhibit D, which details the cost of each search, single document

retrieval, and Shepard’s legal-citation service. On the one hand, counsel for Plaintiff did more

than what was done in Owen v. United States, 861 F.2d 1273, 1275 (Fed. Cir. 1988), where the

court held insufficient Plaintiff’s listing of items summarily such as “senior counsel, research and

factual investigation and brief preparation.” On the other hand, the Court is unable to look at the

specific research done here to determine whether it was relevant or simply “background

research.” See Chesser v. West, 11 Vet. App. 497, 503-04 (1998) (looking to whether topic of

research was connected to subject matter of claims at issue in deciding to reduce number of

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hours of itemized research by one third, and disallowing billing for any background research).

As the court in Brownlee noted, “Supporting documentation must be of sufficient detail and

probative value to enable the court to determine with a high degree of certainty that such hours

were actually and reasonably expended.” 353 F.3d at 970 (citations omitted).

While Plaintiff has provided more detailed information such that the Court may

determine the billing procedures used to reach the total amount of $3,234, see Reply at 7, the

Court still finds a deduction necessary. In the Court’s view, it was unreasonable for Plaintiff’s

counsel to spend $2,212 on the Reply, when only $1,022 was spent throughout the rest of the

case. Id. Given the apparent lack of understanding of the statutory and cost-of-living

calculations in Plaintiff’s original brief, it is reasonable to assume that at least some of this Lexis

research was background research, which may not be charged to the Government. See Chesser.

There is no strict guideline as to what exactly a reasonable deduction may be, but this court will

reduce the amount charged in researching the Reply by 50% to $1,106. Baldridge, 19 Vet. App.

at 241. This brings the total costs to $2,478 ($2,128 for Lexis costs and $350 for the filing fee).

II. Conclusion

For the foregoing reasons, the Court finds that Plaintiff is entitled to $2,478 in costs plus

attorney fees in the amount of $7,304.98. The fees were calculated by taking the regional CPI

rate for 2012 ($150.212) or 2013 ($151.798), dividing by the baseline $100 for November 1996,

then multiplying by the statutory $125 per hour to yield the new hourly rate for each year

($187.765 for 2012, and $189.748 for 2013). Each hourly rate was then multiplied by the

corresponding number of hours billed for that year (19.3 in 2012, and 19.4 in 2013). Costs were

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calculated based on reasonable research and filing fees. The Court, therefore, ORDERS that

Plaintiff be AWARDED fees and costs in the amount of $9,782.96.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 12, 2013

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