Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

Document 117

Filed 08/13/2008

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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. _________________________________________________________________________ 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 13, 2008

Case 1:05-cv-00608-ECH

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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) Plaintiff hereby supplements 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). 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 cost of living adjustments requests in this supplemental request are as follows: Year: 2003: 2004: 2005: 2006: 2007: 2008: Statutory Cap x Consumer Price Index (CPI)* / 1996 CPI = Hourly Rate $125 x 184.000/155.7 $125 x 188.900/155.7 $125 x 195.300/155.7 $125 x 201.600/155.7 $125 x 207.342/155.7 $125 x 214.429/155.7 = $ 147.71 = $ 151.65 = $ 156.79 = $ 161.85 = $ 166.46 = $ 172.15

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Case 1:05-cv-00608-ECH

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Year: 2003: 2004: 2005: 2006: 2007: 2008:

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

Total Attorney Fees (COLA) = $181,159.35

* 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 moves the Court for an award of reasonable attorney fees and expenses. 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, ....

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Case 1:05-cv-00608-ECH

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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,. 3. Such other and further relief as the Court deems proper. Respectfully Submitted DATED: August 13, 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

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CERTIFICATE OF ELECTRONIC FILING This document and all attachments was electronically filed on August 13, 2008 and served on opposing counsel electronically. DATED: August 13, 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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