Free Motion for Attorney Fees - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS EVA P.WHITE, AS ADMIINISTRATRIX OF THE ESTATE OF CHRISTINE H. ROBERTS VS. PLAINTIFF

NO. 1:2005cv1236C (Judge Baskir) DEFENDANT

THE UNITED STATES OF AMERICA

MOTION FOR ATTORNEY'S FEES PURSUANT TO 28 U.S.C. § 2412 COMES NOW Plaintiff Eva P. White, as Administratrix of the Estate of Christine H. Roberts, in the above-referenced matter, and respectfully requests that a fee award be granted pursuant to 28 U.S.C. § 2412, also known as the EQUAL ACCESS following reasons: 1. Plaintiff initiated a claim against Defendant-Appellant with the Bureau of Justice
TO

JUSTICE ACT, for the

Assistance ("BJA") on July 16, 2001, for survivor benefits under the PUBLIC SAFETY OFFICERS' BENEFITS ACT ("PSOBA"). In December 2002, the Public Safety Officers' Benefits office ("PSOB") issued a PSOB claim determination denying death benefits to Ms. Roberts. On March 18, 2004, a PSOB hearing officer affirmed the death benefit denial. On February 17, 2005, the Director of the Bureau of Justice Assistance ("BJA") released a final agency decision, which also affirmed the findings of the PSOB office and the PSOB hearing officer. 2. On December 20, 2006, the United States Court of Federal Claims issued its

remand order and opinion, overruling the BJA and granting benefits to Eva P. White, as Administratrix of the Estate of Christine H. Roberts. 3. On April 2, 2007, the United States Court of Federal Claims entered its final

order, styled "Entry of Judgment Order," which specifically stated as follows: "Upon review of

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the parties' Joint Motion for Entry of Judgment filed on March 30, 2007, the Clerk of the Court is directed to enter a Final Judgment for Plaintiff in the amount of $250,000.00." A copy of that Order, as well as a copy of this Court's Opinion, is attached to this Motion. 4. Therefore, Eva P. White, as Administratrix of the Estate of Christine H. Roberts,

is the prevailing party pursuant to Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 603 (2001). 5. As evidenced by the opinion issued by the United States Court of Federal Claims,

the position of Defendant-Appellant was not substantially justified. 6. § 2412 unjust. 7. Attached to this Motion, as Exhibit "A" and made part hereof is the Affidavit of No special circumstances exists which would make an award under 28 U.S.C.

Plaintiff-Appellee, Eva White, who has set forth that her net worth at the time of instituting these proceedings was less than $2,000,000. 8. Also attached to this Motion, as Exhibit "B" and made part hereof is a Statement The

of Fees and Costs compiled by Phelps Dunbar, LLP, counsel for Plaintiff-Appellee.

attorney fee portion amounts to $ 28,375.00, while the costs are $3,697.09, for a total of $32,072.09. The attorney fees are based on a rate of $125 per hour. 9. Because of the length of time and the amount of work done in this matter, the

attorney fees should be adjusted under 28 U.S.C. § 2412 (d)(2)(A) and Role Models America, Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004). Based on an appropriate cost of living adjustment, the attorney fees should be recalculated as follows:

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125 * March 2007CPI-U -----------------March 1996CPI-U

125 *

205.352 ---------155.7 = $164.86

Therefore, the attorney fees, based on the adjusted rate of $164.86 per hour amounts to $37,423.22. With costs, the amount sought in this Motion totals $41,120.31. 10. Attached hereto as part of this Motion at Exhibit "C", is EAJ Form 5, Application

for Fees and Other Expenses Under the Equal Access to Justice Act. 11. Based on the foregoing, Plaintiff-Appellee request that an award of $41,120.31 be

granted under 28 U.S.C. § 2412. WHEREFORE, Plaintiff-Appellee, Eva P. White, as Administratrix of the Estate of Christine H. Roberts, as prevailing party in this matter, prays that an award be entered in her favor pursuant to 28 U.S.C. § 2412 for attorney's fees and costs in the amount of $41,120.31. Respectfully submitted, this 2nd day of May, 2007. By: /s/Rachel M. Pierce Rachel M. Pierce William M. Beasley PHELPS DUNBAR, LLP Seventh Floor One Mississippi Plaza 201 South Spring Street Post Office Box 1220 Tupelo, MS 38802-1220 Telephone: (662) 842-7907 Facsimile: (662) 842-3873 ATTORNEY FOR PLAINTIFF

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CERTIFICATE OF SERVICE I, Rachel M. Pierce, one of the attorneys for Plaintiff, do hereby certify that I have this date electronically filed the above and foregoing with the Clerk of the Court, utilizing the ECF system which sent notification of such filing to the following: Allison Kidd-Miller Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street Washington, DC 20530 This, the 2nd day of May, 2007. Rachel M. Pierce Rachel M. Pierce

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