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Porter v. Astrue

United States District Court, District Circuit

November 12, 2013

SARAH A. PORTER, Plaintiff,
v.
MICHAEL J. ASTRUE, Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

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 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 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.

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 ...


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