Hubbard v. United States

80 Fed. Cl. 282, 2008 U.S. Claims LEXIS 20, 2008 WL 257374
CourtUnited States Court of Federal Claims
DecidedJanuary 28, 2008
DocketNo. 95-396C
StatusPublished
Cited by12 cases

This text of 80 Fed. Cl. 282 (Hubbard v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hubbard v. United States, 80 Fed. Cl. 282, 2008 U.S. Claims LEXIS 20, 2008 WL 257374 (uscfc 2008).

Opinion

OPINION AND ORDER

SMITH, Senior Judge.

This case is before the Court on remand for the purpose of reconsidering the amount awarded in attorney’s fees.

I. HISTORY

In its Final Order and Opinion, this Court held that “[b]ecause of the clear bad faith shown by the Navy in dealing with Mr. Hubbard, Mr. Hubbard has been forced to appeal to this court, after numerous attempts to resolve the case without resort to litigation, because it was impossible to deal reasonably with a business partner that had acted in bad faith. Accordingly, plaintiff is entitled to recover all its attorney costs, fees and expenses related to this litigation, including expert expenses____” Hubbard v. United States, 52 Fed.Cl. 192, 200 (2002).

In accordance with this Court’s decision, Plaintiff filed a motion for the recovery of attorney’s fees, costs, and expenses from Defendant under the Equal Access to Justice Act (EAJA). See 28 U.S.C. § 2412 (2006). Judgment was entered for fees and costs totaling $125,186.92. Order, July 14, 2005 (Fees Op. 2).

Defendant appealed the matter and, thereafter, the case was affirmed-in-part, vacated-in-part and remanded for the purposes of recalculating the attorney’s fees. See Hubbard v. United States, 480 F.3d 1327 (Fed.Cir.2007). In its determination that this Court re-calculate its award, the Federal Circuit turned to case law regarding a similar fee shifting provision in the Civil Rights Act, 42 U.S.C. § 1988. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Under the Act, the standard is a two part test. First, reasonable attorney’s fees are determined based upon “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433, 103 S.Ct. 1933. Second, the Court must review many factors in its determination of whether to increase or decrease the fee, “the most critical factor [being] the degree of success obtained.” Id. at 436, 103 S.Ct. 1933; see also Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).

In Hubbard, the Federal Circuit held that the principles articulated in Hensley applied to the EAJA awards. 480 F.3d at 1333. Accordingly, this Court will turn its attention to Hensley and apply the EAJA in light of the principles announced in Hensley.

II. DISCUSSION

1. Reasonable Hourly Rate

Under Hensley, the Court must first calculate the reasonable hourly rate. Previously, this Court held that the reasonable hourly rate was 153.18.1 Fees Op. 2. The Court then multiplied this rate by the number of hours agreed to by the parties as the number of hours expended on the litigation. The amount resulted in a total award of attorney’s fees of $110,920.59. Id. The Government argued that this amount resulted in an interest award, an award that is precluded. Id. In essence, the Federal Circuit agreed stating that “[although the award of attorney’s fees lies within the discretion of the trial court, that discretion does not authorize the court to award prejudgment interest against the United States.” Hubbard, 480 F.3d at 1334 (quoting Order, pg. 2, Aug. 26, 2003) {Fees Op. 1). The Federal Circuit further stated that “[although it may difficult, or even impossible, to determine the particular year in which particular portions of the fees were earned ... [t]he court may be able to no more than make a rough approximation of when various portions of the [284]*284fees were earned____” Hubbard, 480 F.3d at 1334.

In light of this, the Court turns its attention to the Bill of Costs filed in February 2003 by Plaintiffs attorney. The Bill of Costs details the attorney’s fees beginning in 1995 through October 2002. In reviewing the costs, it is clear that the majority of fees were incurred in 1996, the year the case was tried. The fees for January 1996 through trial amounted to nearly $60,000, while the other years’ fees were substantially less. Due to the fact that a substantial amount of fees were generated in 1996, the Court will use the Consumer Price Index (CPI) from June 1996, the month the trial was held.2 The result is $120.753 per hour for reasonable attorney’s fees. As the parties have previously agreed that the total attorney hours billed were 624.75, the adjusted fee results in a reasonable fee award in the amount of $75,438.56.4

2. Degree of Success and Whether the Fee is Excessive

As the reasonable fee has now been calculated, the Court must now consider whether to increase or decrease that starting number based on several factors keeping in mind that the most important factor identified by the Supreme Court is “the degree of success obtained in litigation.” Hensley, 461 U.S. at 424, 103 S.Ct. 1933. In Hubbard, the Federal Circuit held that “although the court properly considered the government’s prelitigation conduct in determining whether the government’s position was substantially justified, such conduct did not make irrelevant Hubbard’s lack of success in this case.” 480 F.3d at 1334.

The Court must now focus on the second step in Hensley to determine whether the award of $75,438.56 is excessive due to the limited success of the Plaintiff and, if so, whether the award should be reduced. Defendant has advanced the argument at all levels, in its Motion for Reconsideration, at the Federal Circuit, and again in its Posh-Appeal Brief, that because Mr. Hubbard achieved a very small degree of success in his suit, recovering less than one tenth of one percent of the amount he sought, a reasonable award should be based on that proportional basis to arrive at an award of reasonable attorney’s fees in the amount of $80.11. This argument was flatly rejected by the Federal Circuit stating that “a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors.” Hubbard, 480 F.3d at 1333-34 (quoting Hensley, 461 U.S. at 435 n. 11, 103 S.Ct. 1933 (internal citation omitted)). This Court shall also, once again, reject this argument.

Although Hensley’s holding is clear that the “extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988[,]” Hensley, 461 U.S. at 440, 103 S.Ct. 1933, Hensley provides the mechanism for calculating the proper of amount of fees where the plaintiff is unsuccessful. Specifically, “[wjhere the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee____” Id.

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Bluebook (online)
80 Fed. Cl. 282, 2008 U.S. Claims LEXIS 20, 2008 WL 257374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-united-states-uscfc-2008.