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Speigner v. Wilkie

United States Court of Appeals for Veterans Claims

October 19, 2018, Argued; February 28, 2019, Decided

No. 16-2811(E)


 [*43]  On Appellant's Application for Attorney Fees and Expenses

SCHOELEN, Judge: Veteran John B. Speigner, Jr., filed an application under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), for an award of attorney fees and expenses in the amount of $11,605.72. This Court has jurisdiction under 28 U.S.C. § 2412(d)(2)(F) to award reasonable attorney fees and expenses. Mr. Speigner requests that his attorneys, Caitlin M. Milo and Rory E. Riley, who are employed by National Veterans Legal Services Program (NVLSP),1 but working in locations other than NVLSP's office in Washington, D.C., receive hourly attorney fees of $201.89 based on the Consumer Price Index for all Urban Consumers (CPI-U)2 for the Washington, D.C., area3 rather than the CPI-Us for New Jersey [**2]  and North Carolina, where attorney Milo and attorney Riley live and telework, respectively. 28 U.S.C. § 2412(d)(2)(A).

Advanced technology in the workplace has allowed telework to become an increasingly popular option for employees, including attorneys. The U.S. Office of Personnel Management has stated that numbers of teleworking employees are steadily increasing, and that, in fiscal year 2017, 21% of all federal employees participated in telework. U.S. Office of Personnel Mgmt., Status of Telework in the Federal Government, Report to Congress, Fiscal Year 2017, at 31 (Jan. 2019), (last visited Feb. 27, 2019). Telework presents a novel issue for this Court when it selects a CPI-U for an attorney who works on a case from his or her residence located in a geographical area different from that of his or her employer's office.

This case was referred to panel to address two separate, but related, questions: (1) When a teleworking attorney works on a case from his or her residence, should the CPI-U correspond to the location [**3]  of the teleworking attorney's residence, and (2) when overhead costs are incurred by the attorney's employer's office, should the location of the employer's office and its corresponding CPI-U be used? We hold that, where a teleworking attorney has worked on a case from his or her residence, the CPI-U should correspond to the location of the attorney's residence. We also conclude that selecting a CPI-U based on where overhead costs are incurred is not supported by the caselaw, and we note that basing CPI-U on where overhead costs are incurred appears to be an overly burdensome standard that frustrates the purposes of EAJA. The Court will grant Mr. Speigner's EAJA application, but in the reduced amount of $11,390.65.

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31 Vet. App. 41 *; 2019 U.S. App. Vet. Claims LEXIS 309 **

John B. Speigner, Jr., Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.


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Civil Procedure, Remedies, Costs & Attorney Fees, Attorney Fees & Expenses, Military & Veterans Law, Veterans, Claim Procedures, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Governments, Federal Government, Claims By & Against, Appeals & Review, US Court of Appeals for Veterans Claims