Patriot Attorney Cheyenne, WY 82003 Patriot Attorney (Pro Hac Vice) Arlington, VA 22209-2004 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING Marilyn Patriot, ) ) Plaintiff, ) ) v. ) Civil No. 2:xxx ) UNITED STATES OF AMERICA, ) ) Defendant. ) ________________________________________)
MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR INTERIM AWARD OF ATTORNEY FEES
1. Local Civil Rule 54.3 (g) permits a party claiming to be entitled to an award of interim attorney’s fees to submit a motion in this regard.
2. Congress enacted the Equal Access to Justice Act of 1948, 28 U.S.C. Sec. 2412 (the "EAJA"), to encourage lawyers to undertake litigation to vindicate constitutional and statutory rights of those individuals who could not otherwise afford to vindicate those rights. (June 25, 1948 ch 646 ' 1, 62 Stat. 971) The purpose of EAJA is to insure that people would not be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in pursuing their rights. http://www.equalaccess2justice.us/cgi-bin/index.cgi?page=EAJA+Information
3. The EAJA is a waiver of sovereign immunity. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984).
4. According to 28 USC 2412(d)(1)(B), “a party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses…..”
5. However, no time limitation is placed on filing for an interim award. This Honorable Court has not made a final judgment yet, and, therefore, the 30-day time limit has not yet begun.
6. Additionally, the Equal Access to Justice Act amendments permit attorney fee petitions to be filed before final judgment. Haitian Refugee Center v. Meese, 791 F.2d 1489 (C.A.11 (Fla.), 1986) The legislative history of the EAJA amendments states that fee petitions may be filed before a final judgment. (H.R.Rep. No. 99-120, 18 n. 26, U.S.Code Cong. & Admin.News 1985, p. 146.) The EAJA, as amended, thus follows the trend of decisions under other fee statutes which permit interim fee awards in appropriate circumstances. See Gaines v. Dougherty County Board of Education, 775 F.2d 1565 (11th Cir.1985); Jonas, 758 F.2d at 567. Haitian Refugee Center at 1495-1496.
7. This motion for attorney’s fees is being filed timely.
II. SUBSTANTIAL JUSTIFICATION
8. Under the EAJA, “a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . ..” 28 U.S.C. § 2412(d)(1)(A). The term “fees and other expenses” includes attorney fees. 28 U.S.C. § 2412(d)(2)(A).
9. There are two prevailing court arguments: One states that a plaintiff's entitlement to attorney's fees is a matter which is separate and collateral to the litigation on the merits. Another argument claims that a Plaintiff must show that she has prevailed on a legal issue, or has established a right to relief on the merits of any claim.
10. In this case, Plaintiff has already prevailed against the government by defeating a motion to dismiss her complaint in the U.S. District Court for the District of Columbia. Plaintiff has established a right to be in court and to seek relief. She prevailed on the merits of her claims in the initial stage leading to the transfer of the case from D.C. to Wyoming rather than total dismissal. Plaintiff has a substantial likelihood to prevail on the claims outlined in her amended complaint.
11. Moreover, there is no evidence of delay in this litigation that is attributable to Plaintiff.
III. CALCULATION OF AMOUNT TO BE AWARDED
12. According to 28 U.S.C. § 2412(d)(2)(A)(ii): 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.
A. Limited availability of attorneys
13. There are very few attorneys who are willing to take a case similar to Plaintiff’s on a contingency basis for a mere $500 initial payment ($350 for the filing fee plus $150). The client also paid for the $100 fee to cover the pro hac vice admittance in Wyoming. Total amount of money received by Plaintiff’s counsel in this case amounts to less than $1,000 throughout a twelve-month process which included over 100 hours spent on the case.
14. Plaintiff’s counsel was precluded from pursuing other projects during the time spent on this case.
B. Increase in the cost of living
15. An increase in the cost of living justifies a higher fee. In accordance with a formula, a court may adjust the statutory rate of $125.00 on the basis of the national annual average consumer price index figure for all urban consumers (“CPI-U”) for the two years in which counsel’s work was performed. See Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005). See also Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001).
16. According to the Bureau of Labor Statistics, the national CPI-U for 2007 was 207.342. See http://www.bls.gov/cpi/. Applying the formula, the EAJA base rate of $125.00 is multiplied by the CPI-U for 2007, i.e., 207.342, and the product is divided by 155.7, which was the national CPI-U for March 1996, when the EAJA cap of $125.00 was imposed. So calculated, the adjusted hourly rate for 2007 is $166.46.
17. For 2008, the national CPI-U for the first five months of 2008 was 213.55. Applying the same formula to that number, the adjusted hourly rate between January and May of 2008 is $171.44.
18. The national CPI-U as of August of 2008 was 219.086. Applying the same formula to that number, the adjusted hourly rate after May of 2008 is $175.88.
19. Plaintiff’s counsel spent 45.75 hours on the case in 2007, which yields a fee of $7,615.54 at the rate of $166.46 per hour.
20. Between January and May of 2008, 12 hours would yield a fee of $2,057.28 at the rate of $171.44 per hour.
21. Between June and October 16, 2008, 64.75 hours would yield a fee of $11,388.23 at the rate of $175.88 per hour.
22. If there is an hourly rate error in the figures presented, the court may correct it at its own discretion.
23. Plaintiff seeks an interim award of fees for attorney Patriot Lawyer’s time of $21,061.05 for 122.50 total hours. An addendum of approximate billable hours is attached.
24. Plaintiff also seeks $350 costs for the filing fee, $100 pro hac vice fee, and $875 for Westlaw fees.
25. Plaintiff’s attorney did not keep a record for the costs of photocopies, postage, etc. and is willing to absorb those costs.
26. Granting Plaintiff’s interim attorney fees would help alleviate existing costs of this litigation and offer a better opportunity to prepare for trial since Plaintiff herself cannot pay these expenses. Granting Plaintiff’s interim attorney fees would also be in line with congressional intent aimed at vindicating constitutional and statutory rights for individuals (such as Plaintiff) who could not otherwise afford to vindicate those rights.
27. It is unreasonable for Defendant to engage in a long, protracted defense where it was clear that the IRS had clearly committed illegal or negligent acts in its collection of taxes from Plaintiff, as evident by Plaintiff overcoming Defendant’s motion to dismiss.
28. It has also been unreasonable for the government to continue in this litigation instead of seeking settlement, especially after the D.C. Court denied the government’s motion to dismiss.
29. It is also unreasonable to expect of Plaintiff’s counsel to continue to work for free in preparation for trial, especially after overcoming the government’s motion to dismiss.
30. Plaintiff has already prevailed leading to the transfer of the case from the District of Columbia to Wyoming rather than total dismissal. Plaintiff has a substantial likelihood to prevail on the claims outlined in her amended complaint.
31. There is no evidence of delay in this litigation that is attributable to Plaintiff.
32. Plaintiff is entitled to an interim award of attorney fees.
WHEREFORE Plaintiff requests that this Honorable Court do grant the relief herein requested and other relief the Court deems appropriate.
_/s/ Patriot Attorney Date: October 16, 2008
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing documents, along with the attached Proposed Order, have been served upon the following via the ECF electronic filing system on October 16th 2008:
KELLY H. RANKIN
United States Attorney
CAROL A. STATKUS
Assistant United States Attorney
2120 Capitol Avenue, Room 4002
Cheyenne, Wyoming 82001
ADAIR F. BOROUGHS
Trial Attorney, Tax Division
U.S. Department of Justice
P.O. Box 683
Washington, DC 20044
Attorneys for the United States
_/s/ Patriot Attorney