Francis v. Office of Navajo and Hopi Indian Relocation

Filing 37

ORDER granting in part 36 Plaintiff's Motion for Attorney Fees. ORDER that the Motion is granted insofar as Plaintiff will be awarded the full amount of fees as calculated by the Court. ORDER that Plaintiff is awarded $4,228.08 in attorney's fees and $350.00 in court costs for a total award of $4,578.08. Signed by Judge Stephen M McNamee on 12/1/08.(TLJ)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) Plaintiff, ) ) v. ) ) ) OFFICE OF NAVAJO AND ) HOPI INDIAN RELOCATION, an administrative agency of the United) ) States, ) ) ) Defendant. ) JAMES FRANCIS, No. CV 07-8130-PCT-SMM ORDER Before the Court is Plaintiff's Unopposed Motion and Application for Attorney Fees Under the Equal Access to Justice Act and the parties' Stipulation for Attorney Fees (Doc. 36). The parties stipulate to an award of fees in the amount of $4,658.34. After considering the parties' stipulation, the Court now issues the following Order. Plaintiff requests attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A), which provides: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In granting such an award, the EAJA sets a maximum hourly rate of $125 per hour for attorney fees "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). To determine the cost-ofliving adjustment ("COLA") allowed under EAJA, courts multiply the basic EAJA rate ($125 per hour) by the average annual consumer price index for urban consumers ("CPIU")1 for the year in which the attorney performed the work. Thangaraja v. Gonzales, 428 F.3d 870, 876-77. The result is then divided by the CPI-U in March 1996, the month when the statutory cap ($125 per hour) was imposed. Id. at 877. In the parties' Stipulation, Plaintiff requests $4,658.34 in fees, calculated based upon 25.4 hours of work at the hourly rate of $169.62 in addition to a $350.00 filing fee (Doc. 36). The Court finds this calculation to be incorrect. Counsel for Plaintiff completed the work in 2007 and 2008, and thus, these are the operative years for EAJA fees analysis. Pursuant to Ninth Circuit Rule 39-1.6, the applicable statutory maximum hourly rate under EAJA, including COLA, is $166.46 for 2007. As the year 2008 is not completed yet, the Ninth Circuit has not determined the 2008 statutory maximum hourly rate, adjusted for COLA. As a result, the Court will use the same $166.46 rate for the work performed in 2008. Consequently, the fee award requested in the pending case exceeds the statutory rate specified in the EAJA, adjusted for cost of living increases.2 The national CPI-U, rather than the regional CPI-U, is the proper source from which to determine the COLA in this case, given Ninth Circuit case law and the statutory language of the EAJA. See Jawad v. Barnhart, 370 F.Supp.2d 1077, 1080-89 (S.D. Cal. 2005) (concluding that utilizing the national CPI-U is consistent with the clear language of the EAJA as well as controlling case law). The appropriate fee calculation is as follows: 25.4 hours x $166.46 hourly fee (as permitted under EAJA) plus $350.00 filing fee = $4,578.08. -22 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Application for Award of Attorney's Fees Under the Equal Access to Justice Act (Doc. 36) is GRANTED in part. IT IS FURTHER ORDERED that the Motion is GRANTED insofar as Plaintiff will be awarded the full amount of fees as calculated by the Court. IT IS FURTHER ORDERED that Plaintiff is awarded $4,228.08 in attorney's fees and $350.00 in court costs for a total award of $4,578.08. DATED this 1st day of December, 2008. -3-

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