1 

# In the United States Court of Federal Claims

No. 21

- 1861C (Filed Under Seal : September 15, 2022) (Reissued for Publication: September 29 , 2022) 1

*************************************

* SUPPLYCORE INC., *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

*

Defendant. *

*

and *

* NOBLE SALES CO., INC., d/b/a * NOBLE SUPPLY AND LOGISTICS, *

*

and *

*

PAE

- IMK INTERNATIONAL, LLC, *

*

Defendant

- Intervenors. *

*

*************************************

OPINION AND ORDER

Before the Court is Plaintiff’s, SupplyCore, Inc. ’s

, Motion for Attorney fees and the

United States ’ (the “Government’s”) o pposition to it

.

As background : the Defense Logistics Agency’s ( the “DLA”) awarded two contracts under one Request for Proposals (“RFP”): a “Zone 1” contract was awarded to Noble Supply and Logistics (“Noble”), and a “Zone 2” contract was awarded to PAE

- IMK International, LLC

1 The C ourt issued this opinion under seal on September 15, 2022 , and the Court gave the parties ten days to propose the redaction of competition

- sensitive, proprietary, confidential, or otherwise protected information. The parties did not file any proposed redactions. Thus, the Court issues the original opinion unsealed. Attorney Fees, The Equal Access

to Justice Act

, 28 U.S.C. § 2412(d)

, The Substantially

Justified Standard

, 28 U.S.C. § 2412(d)(1)( A)

, Cost of Living Adjustment.2 (“PAE”). Shortly thereafter, Plaintiff filed protests with the Government Accountability Office (“GAO”) contesting both zone awards. The GAO denied the protests.

Plaintiff filed a post

- award bid protest with this Court , challenging both awards. 2 See

ECF No. 29. In its complaint, Plaintiff asserted that the “DLA failed to evaluate all proposals for price reasonableness as required by the Solicitation and failed to conduct meaningful discussions

with Plaintiff as required by [Federal Acquisition Regul ation (FAR)] 15.306(d)(3).” ECF No. 1

at 2. Plaintiff then filed a M otion for J udgment on the A dministrative R ecord. ECF No. 29. The parties replied in further support of their positions. ECF Nos. 33

- 36.

T his Court issued an Opinion and Order partially Granting and partially Denying

Plaintiff ’s bid protest. ECF No. 37. The Court g ranted Plaintiff ’s Motion with respect to Zone 2, enjoined DLA from continuing performance of the awarded contract, and directe d the DLA to

cancel the award to PAE. Id. The Court d enied Plaintiff ’s Motion with respect to the Zone 1

contract awarded to Noble. Id. In the Court’s opinion, t h is Court held that the DLA ’s Zone 2 award to PAE was arbitrary and capricious because the DLA had engaged in unequal Round 3 discussions that favored PAE and competitively prejudiced Plaintiff

. ECF No. 40 at 2, 8

- 9. This holding was based on three factual findings. See id.

T he Government filed a Rule 59(a) Motion for Reconsideration with respect to the Court’s Zone 2 holding. ECF No. 41. This Court issued an Order finding that errors had been made in the Court’s Opinion and Order. ECF No. 46. The Court’s Order also set a he aring

because issues at the heart of the case

– DLA’s Round 3 finding of “unbalanced” pricing and warning message about pricing that “ cannot be determined fair and reasonable ” (original emphasis)

– remained ambiguous in spite of the Administrative Record ( “AR”). These issues also were not adequately addressed by the Government’s briefs. Id.

The Government then filed a second Motion for Reconsideration responding to the

Court’s O rder, arguing (A) that the Court should not supplement the AR with a hearing and (B)

that Plaintiff bears the burden of proof in the case. ECF No. 47. The Court issued an Order Granting in part and denying in part the Government’s second Motion for Recon sideration. The Court denied the Government’s argument that the Court may not supplement the Administrative Record and granted the Government’s argument that Plaintiff carries the burden of proof. ECF

No. 52. The Court then conducted the hearing. ECF N o. 55.

T his Court issued an opinion upholding its decision and denying the Government ’s

Motion for Reconsideration , finding in relevant part that the: (1) DLA’s finding that PAE

distribution line items were “unbalanced” and “ cannot be determined fair an d reasonable ” was arbitrary because even though relevant PAE line item pricing was nearly identical or literally identical in previous rounds, the DLA made no such finding until Round 3; (2) the DLA’s Round

3 “ cannot be determined fair and reasonable ” warn ing to PAE was arbitrary and unequal

2 This case spans from September 15 , 2021, when Plaintiff filed its complaint, to August 26, 2022, when Plaintiff’s m otion for a ttorney f ees was fully briefed

.3 (prejudicial) to Plaintiff because the Government has presented this assessment, at least in part, in relation to the magnitude by which certain distribution line items exceeded the Government’s
maximum estimate, and th e DLA warned PAE about its Drop Ship Tier 3 price, which was 7.15

- 7.48 times higher than the Government’s estimate, but did not equally implicate Plaintiff ’s price for (much more costly) Non

- Drop Ship Tier 9, which was 7.39 times higher than the

Government’s estimate. The Government did not appeal the Court’s decision.

P laintiff filed a M otion for A ttorney F ees and C osts

. Under the Equal Access to Justice Act ( “ EAJA ” ), 28 U.S.C. § 2412, P laintiff seeks an award of their fees and expenses incurr ed over the course of this litigation. Plaintiff claims to have incurred $38,495.62 in attorney fees
and $402.00 in costs. Plaintiff acknowledges that it prevailed only on the Zone 2 portion of this case, and states that it only seeks 50% of the attorney fees incurred working on this case up until
December 28, 2021. Plaintiff further request s all fees

. 3

The Government opposes the motion and requests that the Court deny Plaintiff ’s motion in its entirety or, in the alternative, reduce the requested fe es and costs. For the reasons given
below, Plaintiff’s M otion for A ttorney F ees and Costs is GRANTED

.



### I. The Equal Access to Justice Act

Plaintiff seeks attorney fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”) 28 U.S.C. § 2412(d)

. Under Section 2412(d), “a trial court must award attorneys’ fees where: (i) the claimant is a ‘prevailing party’; (ii) the Government’s position wa s not substantially justified; (iii) no ‘special circumstances make an award unjust’; and (iv) the fee application is timely submitted and supported by an itemized statement.” Libas, Ltd. v. United

States , 314 F.3d 1362, 1365 (Fed. Cir. 2003) (summarizing 28 U.S.C. §§ 2412(d)(1)(A), (B)). In addition, if the applicant is a corporation, its net worth must not have “exceed[ed] $7,000,000 at the time the civil action was filed, . . . [or employed] more than 500 employees at the time the

civil action was fil ed.” 28 U.S.C. § 2412(d)(1)(A),(B).

The Government does not dispute Plaintiff ’s assertions regarding its net worth or size, or

t hat Plaintiff was a prevailing party with respect to one of the two challenged awards. Th e Government does not raise any “sp ecial circumstances” that would make an award unjust. The

Government contests only the substantial justification for its position and the amount claimed by

Plaintiff in its fee application. Accordingly, the only issues for this Court to determine are whether the United States was substantially justified in its position and whether Plaintiff has established entitlement to any measure of recoverable fees.

The EAJA prohibits an award if the Government can demonstrate that its position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The substantially justified standard “does not raise a presumption that the Government position was not justified, simply because it lost the

case. ” Norris v. SEC , 695 F.3d 1261, 1265 (Fed. Cir. 2012) (internal quotation marks and

3 Plaintiff also claims fees for the time spent preparing this EAJA application.4 citation omitted). Nor does the Government’s position have to be “correct” or even “justified to a high degree.” Id. (quoting Pierce v. Underwood , 487 U.S. 552, 565, 566 n.2 (1988)). “Substantial justification” means “‘justified in substance or in the main’

-- that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood , 487 U.S. 552 , 565 (1988).

The Government meets this standard if it show s that its position had a “reasonable basis both in law and in fact,” but fails if it can only show that it is “merely undeserving of sanctions for

frivolousness.” Id. at 565

- 66 (quotations and citations omitted). In “ determin[ing] whether the overall po sition of the United States is substantially justified, trial courts are instructed to look at the entirety of the government ’ s conduct and make a judgment call whether the government ’ s overall position had a reasonable basis in both law and fact. ” Chiu v . United States , 948 F.2d 711, 715 (Fed. Cir. 1991)

.

II. Discussion

A. T he Government’s Position Was Not Substantially Justified.

This Court sustained Plaintiff ’s protest of the Zone 2 award based on the finding that the

Government’s conduct violated FAR § 15.306(d)(3), which mandates that when Government contracting officers engage with bidders, such discussions must be meaningful, “[a]t a minimum, . . . indicat[ing] to or discuss[ing] with, each offeror still being considered for award,

d eficiencies, [and] significant weaknesses ,” and FAR § 15.306(e)(1), which prohibits government personnel from engaging in conduct that “f avors one offeror over another .” Specifically, this Court found that “DLA’s Round 3 unreasonable price warning to PAE and not

to Plaintiff plus DLA’s award to PAE despite the fact that PAE declined to respond to the unreasonable price warning amounts to an arbitrary and capricious decision.” ECF No. 56 at 10

. T hus, to defeat Plaintiff ’s the EAJA application based on a showing of substantial justification, the Government has the burden to show that its unequal treatment of Plaintiff and PAE

, and its

violation of both FAR § 15.306 (d)(3) and FAR § 15.306 (e)(1) was reasonable. Se e Chiu , 948

F.2d at 715. The Government failed to meet its burden. For the reasons given below, this Court

holds that the G overnment’s position at the agency level and its litigation position were not substantially justified, and as a result an award of fees and expenses is appropriate.

In Federal Election Com ’ n v. Rose , 806 F.2d 1081 (D.C. Cir. 1986), the court distinguished circumstances in which agency action was deemed arbitrary and capricious due to reasons such as the agency’s failure to adequately explain its actions

— which may nevertheless be deemed substantially justified

— from “other reasons for invalidating agency action as ‘arbitrary and capricious’ [that] seem more likely . . . to signal conduct that is not ‘substantially justified.’” Id. at 1089. The Rose court explained:

For example, an agency’s unjustifia bly disparate treatment of two similarly situated parties works a violation of the arbitrary

- and

- capricious standard. So does an agency’s failure to apply a rule in a situation to which the rule obviously pertains. As a practical matter, the Government in fees litigation may well suffer considerably greater difficulty in demonstrating that these sorts of ‘arbitrary and capricious’ actions are nonetheless ‘substantially justified.’5 Id. The DLA ’s unequal treatment of Plaintiff and PAE , which this Court found to be arbitrary and capricious, signals conduct that is not substantially justified, and the Government has offered

no explanation for its conduct that establishes otherwise. Although the Government asserts that the DLA reasonably believed discussi ons were meaningful because they led all offerors to improve their prices, this does not explain the DLA ’s

violation of FAR § 15.306 (d)(3) and FAR § 15.306(e)(1). T he Court found that the DLA

violated FAR § 15.306(d)(3) by fail ing to conduct meaningful di scussions because it did not provide both offerors with the same warning during Round 3 discussions. ECF No. 40 at 7 (“The Agency’s Round 3 Instruction to PAE Violates the Requirement for Meaningful Discussions.”) The Court also found that the DLA violat ed FAR § 15.306(e)(1), by engaging in conduct that “favor[ed] one offeror over another.” ECF No. 56 at 13 (“ the Court further holds

that PAE and Plaintiff were treated unequally even though they both had distribution line item prices which were similar magnitudes above the Government’s maximum estimate. ” )

. There is

no other explanation for the distinct warnings given to the two offerors other than unequal

treatment. The Court has considered all of t he Government ’s arguments in relation to this matter in its briefs and its motion for reconsideration, and this Court also held a hearing on March 9,

2022

, to further consider the Government’s position. Even af ter the Government had multiple opportunities to explain its conduct, the Court still found that the DLA acted in an arbitrary and capricious manner by violating both FAR § 15.306 (d)(3) and FAR § 15.306(e)(1)

. ECF No. 56

at 19.

T he Government also cont ends that there is nothing inherently unlawful in the DLA conveying different messages to PAE and to Plaintiff during discussions in light of their proposals’ differences. 4 ECF No. 62 at 9. This Court previously rejected t he Government ’s argument that the DLA was simply conveying different messages to offerors during discussions

because of distinctions in their respective technical approaches . In its motion for reconsideration, t he Government argued that the “cannot be determined fair and reasonable” warning to PAE (and not to Plaintiff ) reflected an unbalanced pricing finding, and that DLA found only PAE’s distribution tier pricing unbalanced, purportedly accounting for the uneven representations to the two bidders. This Court heard and rejected this argument, finding “ In addition to not identifying unbalanced pricing with regard to PAE in Rounds 1 and 2 (despite the fact that this was evident), the Court further holds that PAE and Plaintiff were treated unequally even though they bot h had distribution line item prices which were similar magnitudes above the

Government’s maximum estimate. ” ECF No. 56 at 13.

As support for its argument, the Government invokes general principles of “ discussions, ” stating that a contracting officer has substantial discretion in conducting discussions. The discretion afforded to contracting officers in conducting discussions, however, does not allow

4 The Government also points to its success at the GAO as evidence that its position was substantially justified. In its reply, Plaintiff correctly points out that the fact that the G overnment was successful before the GAO does not create a presumption about whether the Government was substantially ju stified. This Court agrees. The Federal Circuit has held that “ the position of

the g overnment is not shown to be substantially justified merely because the government prevailed before a lower tribunal. ” Community Heating & Plumbing Co. v. Garrett , 2 F.3d 1143,

1145

- 46 (Fed. Cir. 1993).6 them to conduct unequal discussions or engage in conduct that favors one offeror over another,

as this Co urt previously found. Thus

, this Court holds that the DLA ’s failure to follow FAR §

15.306 (d)(3) and FAR § 15.306 (e)(1) during discussions cannot be determined to be substantially justified as “There is no justification for the government’s position when clear, unambiguous regulations directly contradict that position.” Filtration Dev. Co. v. United States

, 63 Fed. Cl. 612, 621 (2005 ).

When analyzed through the “EAJA ‘ prism, ’ ” the DLA’s actions and the G overnment’s litigation position supporting those actions are not substantially justified. Luciano Pisoni

Fabbrica Accessori Instrumenti Musicali v. United States , 837 F.2d 465, 467 (Fed. Cir. 1988) (quoting Rose , 806 F.2d at 1090 (“[the court should] exam ine through an EAJA prism both the Government’s litigation position and the conduct that led to the litigation”) ) . Plainly stated, the FAR regulations “were so clear and the [ agency ’s] failure to comply with them so obvious that [its] actions could not ‘a ppear correct to a reasonable person.’” Filtration Dev. Co., LLC , 63

Fed. Cl. at 621 (qu oting Role Models America, Inc. v. Brownlee , 359 U.S. App. D.C. 237 (D.C. Cir. 2004) ).

B. The Fees Claimed by Plaintiff are Reasonable and Supported

Plaintiff acknowledges that it prevailed only on the Zone 2 portion of this case, and therefore is only seeking 50% of the attorneys’ fees incurred working on this case up until December 28, 2021. Plaintiff states that all fees incurred in connection with the Gove rnment’s motion for reconsideration pertained to the Zone 2 award, and thus 100% of those fees are

claimed. Further, Plaintiff also includes fees for the time spent preparing this EAJA application.

See Fritz v. Principi , 264 F.3d 1372, 1377 (Fed. Cir. 20 01) ( “ [Plaintiff] was entitled to attorney fees . . . incurred in preparation and defense of the fee application to the extent those fees are

defensible. ” ). Plaintiff initially asks for an award of $39,371.70 in attorney fees and $402.00 in costs, but aft er making calculation adjustments, as described below, Plaintiff asks for an award

of $38,495.62 in attorney fees and $402.00 in costs. The Government contends that Plaintiff ’s claimed fees for the successful protest of the Zone 2 award are unreasonable a nd inadequately supported for several reasons

.

1. Plaintiff’s Claimed Fees are Adequately Supported

As an initial matter, the Government’s response correctly points out that Plaintiff ’s EAJA submission does not state that those who completed the work were in fact attorneys nor does

Plaintiff identify the attorneys’ billing rates. To address this point, Plaintiff filed an updated itemization that identifies the positions of each of the attorneys who performed work on t his

matter and their billing rates, all of which exceed the statutory rate. See ECF No. 71

. 5

5 Further, in the Supplemental Declaration, P laintiff states that, “I learned after filing SupplyCore’s r eply submission that Sabrina Bey was not a licensed attorney at the time she

worked on this case. She worked for Husch Blackwell as a law clerk, not as an associate attorney, and departed the firm on May 12, 2022. I was mistaken regarding her status at the time the initial fee petition and reply were filed. Ms. Bey’s work as a law clerk was billed to SupplyCore and p aid by SupplyCore as indicated in the initial and reply submissions; however,7 The Government also argues that only the two attorneys w hose names appear on filings and who were granted access to the seale d filings and protected record in this case are eligible

for an award of fees. The Government’s suggestion that only attorneys who have appeared on record are eligible for fees is not supported by the EAJA, which contains no such restriction. Rather, the EAJA authorizes an award of fees for services provided by “any attorney . . . representing or appearing on behalf of the party.” 28 U.S.C. § 2412(d)(1)(B)

. Further , courts have routinely rejected the argument that only attorneys who appear on behalf of a party are entitled to attorneys’ fees under fee

- shifting statues. 6 See, e.g ., Case v. Unified School Dist. No. 233, Johnson County, Kan. , 157 F.3d 1243, 1252 (10th Cir. 1998) (“We do not think that whether [the attorney] entered an appearance is the relevant question . . . . [W]e can easily contemplate a scenario in which a junior associate spends hours of appropriately billable time on litigation yet remains unknown to the court.”); Cuceta v. City of N.Y. , No. 10 Civ. 5059 (FB)(JO), 2012 WL 2885113, at *3 (E.D.N.Y. Feb. 7, 2012)( a prevailing party’s entitlement to fees “is limited neither by some artificial boundary on the number of attorneys [it] may engage, nor by some maximum amount of work that his attorneys may perform ‘behind the scenes,’ but

on ly by the principle that the fees be reasonable.”). Thus, this Court rejects the Government’s

contention that Plaintiff is entitled to an award of attorney fees only for those attorneys who have appeared in this case.

The Government contends that only le gal work that resulted in a “deliverable” was reasonable, and thus time spent on “research” should be disallowed as “duplicative.” ECF No.

62 at 13

- 14. The Government cites no legal support for the proposition that in order to be

“reasonable” under the E AJA legal work must result in a “deliverable ,” and the Government identifies no specific time entries that it contends demonstrate unreasonable duplication

. First,

this Court holds it is not unreasonable for associate attorney s to perform legal research and share

that research with another attorney who incorporates the research into a “deliverable .” Further,

the itemization that Plaintiff submitted with its EAJA application demonstrates that each of the attorneys who worked on this case made distinct contributions.

The Government claims that the total time Plaintiff ’s attorneys spent on the case was unreasonable and excessive based on the length of the briefs (25 and 18 pages) Plaintiff

submitted in support of its motion for judgm ent on the administrative record. Plaintiff correctly points out that this argument ignores that the time spent preparing briefs involved legal research, review of thousands of pages of the administrative record, and drafting and revising arguments.

More over, the Court agree s with Plaintiff that the relative conciseness of Plaintiff ’s briefs is not indicative of a lack of time spent preparing them; in fact, the opposite inference is warranted.

The Government asserts that Plaintiff ’s arguments were unsupp orted, and Plaintiff ultimately prevailed only on its unequal discussions claim raised in its reply and developed, in substance,

due to this inadvertent oversight her time has been removed from Exhibit A and is not being

claimed.” ECF No. 71 at 2

.

6 See e,g., Manning v. Astrue , 510 F.3d 1246, 1250n.5 (1 0th Cir. 2007)(“The Supreme

Court has that legal principles from cases addressing other fee

- shifting statutes, such as § 1988, apply to EAJA cases.”)

.8 not by SuppyCore but by the Court’s own questioning of the contracting officer in a post

judgment hearing.

The Government’s a rgument fails because Plaintiff successfully litigated its Z one 2 claim and only seeks fees for work associated with that claim. Further, Plaintiff has submitted adequate proof of the attorney fees sought by providing an itemized documentation of its claimed hours, with a summary explaining the work completed for each hour claimed. Thus, the Court

hold s that Plaintiff’s claimed hou rs are reasonable

. Finally, this Court holds that Plaintiff’s

claimed hours were not excessive. The Supreme Court has held that Petitioner ’ s counsel “ should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such

hours from his fee submission. ” Hensley v. Eckerhart , 461 U.S. 424 , 434 (1983)

. Here,

Plaintiff ’s claimed hours are not duplicative, excessiv e, or unnecessary . Plaintiff only claims hours for its legal work on its claim for Zone 2 . Thus, the Court holds that Plaintiff’s claimed

hours are not excessive.

Lastly, the Government opposes Plaintiff’s request for fees for hours spent preparing and defending its EAJA application. W hile a prevailing party awarded EAJA fees is presumptively

entitled to fees for hours spent preparing and defending its EAJA application, the Court must

determine whether the hours expended on litigating the EAJA application were reasonable. Fritz v. Principi , 264 F.3d 1372, 1377 (Fed. Cir. 2001). In Fritz , the Federal Circuit instructed that “to the extent that the applicant ultimately fails to prove justification for each item of fee claimed, charges generated in defense of such unfounded fee claims are not recoverable.” Fritz , 264 F.3d at 1377, n.1 (citing Comm’r v. Jean , 496 U.S. 154, 163 n.10 (1990) ). The Government has not identified any claimed hours that it argues are unfounded or unreasonable

. Plaintiff claims entitlement to 16.9 hours of attorney work related to its EAJA application , which are included in the hours requested. Plaintiff provides an itemized lis t of each hour worked and explains how the time was spent. This Court holds that this is an adequate justification for each item of fee claim concerning Plaintiff’s work defending its EAJA applicati on. See Naporano Iron & Metal

Co. v. United States

, 825 F.2d 403, 404 (Fed. Cir. 1987) (explaining that the EAJA requires that anyone seeking an award of attorney fees and expenses shall submit, among other things, “an itemized statement . . . stating the actual time expended and the rate at which fees and other expenses are computed.”)

.

2. Plaintiff is Entitled to a Cost of Living Adjustment

The EAJA provides that the amount of attorney fees shall be based on the “prevailing market rate,” but “attorney fees shall not be awarded in excess of $125 per hour unl ess 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)(ii). It is within the court ’ s di scretion to apply a cost of living adjustment

. See

Oliveira v. United States , 827 F.2d 735, 744 (Fed. Cir. 1987)). “[T] he Supreme Court has implied that applying a cost

- of

- living adjustment under the EAJA is next to automatic

. ” Meyer

v. Sullivan , 958 F. 2d 1029, 1035 n.9 (11th Cir. 1992)

. The p laintiff must only overcome a minimal threshold; th e Co urt of Federal Claims has “ decline [ d ] to impose a requirement tha t an applicant must do more than request such an adjustment and present a basis upon which the9 adjustment should be calculated. ” California Marine Cleaning , 43 Fed. Cl. 724, 733 (1999) (citations omitted).

In order to calculate the appropriate cost of living adjustment, courts multiply EAJA’s $125 hourly cap by the applicable consumer price index (“CPI”), and then divide that product by

the relevant CPI for March 1996 ($155.70), when the cap was last raised. See 2M Rsch. Servs.,

LLC v. United States , 148 Fed. Cl. 99, 108 (2020). The Court of Federal of Claims has explained:

In determining which CPI is applicable to a given award, the Federal Circuit has endorsed the use of “a single mid

- point inflation adj ustment factor applicable to services performed before and after that mid

- point. Under the ‘mid

- point’ method, the Court determines the ‘month that lies at the midpoint between the first and last month for which attorneys’ fees are being awarded,’ and uses the CPI for that ‘midpoint’ month as the basis for the cost of living adjustment to the statutory cap. The formula for calculating a [cost of living] adjustment is as follows: $125 x Relevant CPI Month [÷] $155.7 (March 1996 CPI)

Id. (internal quotation s and citations omitted). The Government argues that P laintiff failed to

establish its entitlement to a cost of living adjustment

. First, the Government a rgues that the

court may only award the lower of the attorney’s billing rate or the statutory cap pl us a cost

- of

living increase. The Government argues that because Plaintiff has not provided the Court with the requisite information to assess which rates are lower, for each individual, its application for fees does not establish the appropriateness of the rates demanded. Plaintiff addresses this issue by filing Exhibit A, att ached to its Supplemental Declaration of William E. Hughes , which provides the rates of each attorney that worked on the case in comparison to the EAJA rates:

Timekeeper Title Rate Billed EAJA

rate Hours EAJA
Amount (Hours
x EAJA rate)

Julia Banegas Associate Attorney $445

- 2021

$498.75

-

2022 $223.83 71.65 $16,037.42

William Hughes Partner $480

- 2021

$500

- 2022 $213.92 76.65 $16,396.97

Leah Kaiser Associate Attorney $432.25 $223.83 3.00 $671.49

Maya Desai Associate Attorney $432.25 $223.83 7.45 $1,667.53

Emily

Constantine Senior Counsel $498.75 $213.92 17.40 $3,722.21

176.15 $38,495.6210 ECF No. 71

- 1 at 11. The EAJA rate here is the lower of the two rates for each attorney billed. Thus, P laintiff correctly applied the EAJA rate , as described below, in its calculati on of fees.

Next, the Government correctly notes in its response that Plaintiff used the U.S. City CPI

rath er than the applicable loca l CPI in calculating the appropriate cost

- of

- living adjustment. The

Federal Circuit has held “ the local CPI approach, where a local CPI is available . . . is more consistent with the EAJA than the national approach .” Parrot v. Shulkin , 851 F.3d 1242, 1249 (Fed. Cir. 2017) (citation s omitted). To supplement this information, Plaintiff filed a Supplemental Declaration of William E. Hughes, stating that Attorneys Banegas, Desai, and Kaiser, are located in Washington D.C. , and Attorneys Hughes and Constantine are located in Milwaukee, Wisconsin. Plaintiff also calculated revised hourly rates based on using the appropriate CPIs as reflected below

.

Th is C ourt sees no reason to deny P laintiff a cost of living adjustment. P laintiff correctly recognizes March 1996, the effective date of the amended statutory cap, as the baseline for calculating the cost of living adjustment. The EAJA was amended in 1996 , and as a result the

statutory cap was raised to $ 125. See Pub. L. No. 104

- 121 § 232(b)(1), 110 Stat. at 863. Consequently, any civil action commenced on or after the effective date of the 1996 statute, March 29, 1996 , must use the new statutory cap

. See id. § 233, 110 Stat. at 864. Thus , March

1996 is the appropriate baseline for calculating the cost of living adjustment to the $ 125 cap.

See California Marine Cleaning , 43 Fed. Cl. at 734. If legal services span a number of months, as here, the Federal Circuit has used the “ mid

- point ” method to perform a CPI calculation. Chiu

, 948 F.2d at 722 n.10

. Under the “ mid

- point ” method, the Court determines the “ month that lies

at the mid

- point between the first and last month for which attorneys ’ fees are being awarded, ”

and uses the CPI for that “ mid

- point ” month as the basis for the cost of living adjustment to the

statutory cap. DGR Assocs., Inc. v. United States , 97 Fed. Cl. 214, 221 (2011), rev ’ d on other grounds , 690 F.3d 1335 (Fed. Cir. 2012).

Plaintiff claims att orney fees for the period from September 3, 2021, t o March 9, 2022. 7

The mid

- point in that period is December 2021. To calculate the cost of living adjustment for March 1996 through December 2021, the statutory cap of $125 is multiplied by the CPI in

De cember 2021 and divided by the CPI in March 1996. The relevant CPI s var y here because the

attorneys are in different locals. Attorneys Banegas, Desai, and Kaiser are located in Washington D.C., and Attorneys Hughes and Constantine are located in Milwaukee, Wisconsin.

Plaintiff provides the United States Bureau of Labor Statistics (“BLS”) CPI data for the Midwest Region, which according to BLS includes Wisconsin. ECF No. 70

- 1 at 3. The

Midwest CPI, for Attorneys Hughes and Constantine, in December 2021 is $259.69. The March

1996 Baseline CPI in the Midwest is $ 151.7. ECF No. 70

- 1 at 2. For attorneys Hughes and

7 In its m otion for a ttorney f ees, Plaintiff explains that fees were incurred over a period of approximately six months, from September 3, 2021, when Plaintiff prepared the complaint and initiated this action, until March 9, 2022, when the Government’s motion for reconsideration was

fu lly briefed and the hearing had been completed.11 Constantine, the hourly rate of $213.92 was calculated as follow s: ($125 x $ 259.609 (December 2021 Midwest CPI) ÷ $ 151.7 (March 1996 Midwest CPI) = $213.92

. 8

Plaintiff provides an exhibit showing that no December 2021 Mid

- Atlantic CPI data

exists for Washington D.C.

, as the data is collected on a bi

- monthly basis

, ECF No. 70

- 1 at 10,

and thus Plaintiff instead used the December 2021 U.S. City CPI for Attorneys Banegas, Desai, and Kaiser, which i s $ 278.802. ECF No. 59

- 4 at 2

. The U.S. City CPI in March 1996 i s $ 155.7.

ECF No. 59

- 4 at 2. Thus, for attorneys Banegas, Desai, and Kaiser the hourly rate of $223.83 was calculated as follows: ($125 x $ 278.802 ( U.S. City CPI for December 2021) ÷ $ 155.7 (March 1996 CPI) = $223.83 per hour. Plaintiff also supplemented its EAJA application to

refle ct 10.5 hours spent in connection with this reply. With this additional time and the rate adjustment explained above, the total number of hours included in this application is 176.15 hours, resulting in total attorney fees of $38,495.62. Plaintiff’s appli cation also properly

identifies a disbursement o f $402.00 in its billing records to cover the filing fee paid to the

United States Court of Federal Claims. ECF No. 70

- 1 at 11. Thus, the total amount awarded in

reasonable attorney fees and costs is $ 38,89 7.62 , representing $38,495.62 in attorney fees and
$402.00 in costs

.

III. Conclusion

T h e Court concludes, after considering the totality of the circumstances, including both the underlying agency action and the Government ’ s litigation position, that the position of the

Government in this dispute was not substantially justified

. Therefore, the Court GRANTS

Plaintiff ’s Motion for A ttorney F ees and Cost s

. Plaintiff is awarded attorney fees of $38,495.62
and $402.00 in costs. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Edward J. Damich

EDWARD J. DAMICH Senior Judge

8 Plaintiff explains in its Supplemental Declaration that it reduced the total amount of fees for work performed on this case prior to December 28, 2021, by 50% to ensure that only fees relating to Plaintiff ’s successful protest of the Zone 2 contract award are being claimed. ECF

No. 71 at 2. Plaintiff states that l egal work performed after December 28, 2021, related solely to the successful protest of the Zone 2 contract award. Id. Thus, Plaintiff explai ns that it claims 100% of the fees for work performed after December 28, 2021. Id.