Free Motion to Supplement Pleadings - Rule 15(d) - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

Document 121

Filed 08/26/2008

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No. 05-608C (Judge Emily Hewitt) ___________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON, Plaintiffs, v. UNITED STATES OF AMERICA Defendants. _________________________________________________________________________ NOTICE OF MOTION AND MOTION TO SUPPLEMENT TO PLAINTIFF FRANCISCO JAVIER RIVERA AGREDANO'S APPLICATION FOR AN AWARD OF REASONABLE ATTORNEY FEES AND EXPENSES UNDER 28 U.S.C. SECTION 2412(b) and/or (d) Honorable EMILY HEWITT, Judge Presiding

TERESA TRUCCHI SBN# 135543 SUPPA, TRUCCHI, AND HENEIN, LLP 3055 India Street San Diego, CA 92103 Telephone: (619) 297-7330 Telefax : (619) 297-9658 Attorneys for PLAINTIFF FRANCISCO JAVIER RIVERA AGREDANO

August 26, 2008

Case 1:05-cv-00608-ECH

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NOTICE OF MOTION AND MOTION UNDER RCFC 15(d) TO SUPPLEMENT TO PLAINTIFF'S APPLICATION FOR AN AWARD OF REASONABLE ATTORNEY FEES AND EXPENSES UNDER 28 U.S.C. SECTION 2412(b) and/or (d) Plaintiff hereby respectfully requests leave to supplement his APPLICATION FOR AN AWARD OF REASONABLE ATTORNEY FEES AND EXPENSES UNDER 28 U.S.C. SECTION 2412(b) and/or (d) filed July 27, 2008 to seek a Cost of Living Adjustment to the attorney's fees incurred from 2003 to 2008 based on the consumer price index. See California Marine Cleaning, Inc. v. United States, (1999) 43 Fed. Cl. 724, 734 (court used and took judicial notice of the consumer price index for calculating EAJA awards). GROUNDS FOR RELIEF REQUESTED It is the plaintiff's counsel's understanding that the USA will file for an extension to respond to the plaintiff's motion for attorney fees under 28 U.S.C. SECTION 2412(b) and/or (d). It is also plaintiff' counsel's understanding that the USA will "defer to the Court" on the issue of whether or not the pending EAJA petition should be supplemented to include the COLA calculations set forth below. As the deadline to file a petition for attorney fees and costs under 28 U.S.C. SECTION 2412(b) and/or (d) has not expired, and the USA has not filed a response to the petition, there would be no prejudice to the USA if the request to supplement is granted. The amount requested pursuant to the COLA calculations is less than the total amount requested under the plaintiff's EAJA petition pursuant to 28 U.S.C. SECTION 2412(b) and/or (d). As such, the requested supplemental pleadings discuss an additional legal ground for relief but do not increase the scope of the relief requested. Furthermore, the request is timely pursuant to RCFC 54(d)(2)(B).

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Case 1:05-cv-00608-ECH

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Filed 08/26/2008

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Pursuant to Rules of the Court of Federal Claims 15(d), upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading ... (p)ermission may be granted even though the original pleading is defective in its statement of a claim for relief." Plaintiff apologizes for any inconvenience causes to the Court and respectfully requests that the pending EAJA petition include the COLA calculations and argument set forth below. COLA CALCULATIONS AND AUTHORITY This court calculates the COLA by multiplying the basic EAJA rate of $125.00 by the current consumer price index for urban consumers, and then, dividing the product by 155.7, the CPI for March 1996 when the cap was imposed. Gonzalez v. United States, (1999) 44 Fed. Cl. 764, 770. Furthermore, the COLA should be calculated separately for each year that services were provided. California Marine Cleaning, Inc. v. United States, 43 Fed Cl. at 734. Accordingly, the COLA adjustments requests in this supplemental request are as follows: Year: 2003: 2004: 2005: 2006: 2007: 2008: Year: 2003: 2004: 2005: 2006: 2007: 2008: Statutory Cap x Consumer Price Index (CPI)/ 1996 CPI = Hourly Rate $125 x 184.000/155.7 = $ 147.71 $125 x 188.900/155.7 = $ 151.65 $125 x 195.300/155.7 = $ 156.79 $125 x 201.600/155.7 = $ 161.85 $125 x 207.342/155.7 = $ 166.46 $125 x 214.429/155.7 = $ 172.15 Hours x Hourly Rate 187.75 x $147.71 271.25 x $151.65 88.00 x $156.79 73.75 x $161.85 134.50 x $166.46 372.75 x $172.15 = EAJA Fees = $ 27,732.55 = $ 41,135.06 = $ 13,797.52 = $ 11,936.44 = $ 22,388.87 = $ 64,168.91 = $181,159.35 Page 2 of 5

Total Attorney Fees (COLA)

Case 1:05-cv-00608-ECH

Document 121

Filed 08/26/2008

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The CPI was obtained from the Bureau of Labor Statistics's website at www.data.bls.gov., and reflect the urban CPI for all items. Based on the above computations, plaintiff requests EAJA attorney fees in the amount of $181,159.35, plus attorney's costs in the amount of $30,457.01, for the sum of $211,616.36. CONCLUSION Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Section 2412(b) and/or (d), plaintiff FRANCISCO JAVIER RIVERA AGREDANO respectfully moves the Court for leave to supplement his petition for an award of reasonable attorney fees and expenses to include COLA increases as follows: 1. Plaintiff seeks an award for litigating the merits of his case against the United States of America in the amount of $254,475.00 in fees (1,131 hours at $225.00/hr.) and $30,457.01 in costs for a total requested award under 28 U.S.C. Section 2412(b) and/or (d) of $284,932.01 (if the Court concludes that a "special factor" exists in the instant case, or "oppression" exists under 28 USCA 2412(b) justifying fees in excess of the cap set forth in 28 U.S.C. 2412(d)(2)(A); or in the alternative, 2. If the Court concludes that a "special factor" does not exist in the instant case or that the plaintiff has not provided evidence sufficient to sustain a finding under 28 USC 2412(b), then the amount of fees requested under this application, as calculated at $125.00 per hour and adjusted for cost of living as set forth above is the amount of $181,159.35, plus attorney's costs in the amount of $30,457.01, for the total sum of $211,616.36; and,. .... .... Page 3 of 5

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3. Such other and further relief as the Court deems proper. Respectfully Submitted DATED: August 26, 2008 SUPPA, TRUCCHI & HENEIN, LLP s/Teresa Trucchi By: TERESA TRUCCHI Attorneys for Plaintiffs 3055 India Street San Diego, CA 92103 Telephone: (619) 297-7330 Telefax : (619) 297-9658

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Case 1:05-cv-00608-ECH

Document 121

Filed 08/26/2008

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CERTIFICATE OF ELECTRONIC FILING This document and all attachments was electronically filed on August 26, 2008 and served on opposing counsel electronically. DATED: August 26, 2008 SUPPA, TRUCCHI & HENEIN, LLP s/Teresa Trucchi By: TERESA TRUCCHI Attorneys for Plaintiffs SUPPA, TRUCCHI, AND HENEIN, LLP 3055 India Street San Diego, CA 92103 Telephone: (619) 297-7330 Telefax : (619) 297-9658

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