Speigner v. Wilkie

John B. Speigner, Jr., Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 16-2811(E)

United States Court of Appeals For Veterans Claims

February 28, 2019

Argued October 19, 2018

On Appellant's Application for Attorney Fees and Expenses

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 Washington, D.C area^[3] 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, 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 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, 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...