In this сontract case, a post-trial judgment was issued in favor of plaintiff, United Partition Systems, Inc. (“United Partition”). See United Partition Sys., Inc. v. United States,
BACKGROUND
United Partition is a manufacturer of prefabricated modular buildings, primarily but not exclusively for indoor use. Having obtained a Multiple Award Schedule contract from the General Services Administration (“GSA”), United Partition’s product consequently was included on the Federal Supply Schedule (“FSS”) by GSA. On June 5, 2000, the Air Force issued a delivery order to United Partition for the construction and installation of a modular building inside a warehouse at Luke Air Force Base (“AFB”), coupled with the removal of three existing modular buildings. United Partition II,
United Partition substantially performed under the delivery order and nearly completed construction of the building. United Partition II,
Subsequent to the termination of the contract, United Partition filed a claim with the Air Force’s contracting officer. See United Partition I,
In this court, the government moved to dismiss United Partition’s complaint for lack of subject matter jurisdiction, relying on the fact that the Air Force contracting officer did not have jurisdiction to act on United Partition’s claim and arguing that the court was accordingly lacking authority under the Contract Disputеs Act, 41 U.S.C. § 605, at the time United Partition filed its complaint. See United Partition I,
At the subsequent trial on liability and damages, despite the prior ruling of both the Board and the court that United Partition had raised an exeusability defense, see United Partition,
STANDARDS FOR DECISION
EAJA provides a mechanism by which a qualifying party may receive an award of reasonable attorneys’ fees. 28 U.S.C. § 2412(d)(1)(A), (B). To be eligible for such an award, five criteria must be satisfied: (1) the applicant must have been a “prevailing party” in a suit against the United States; (2) the government’s position must not have been “substantially justified;” (3) there cannot be any “special circumstances [that] make an award unjust;” (4) any fee application must be submitted to the court within thirty days of final judgment in the action and also be supported by an itemized statement; and (5) a qualifying party must, if a corporation or other organization, have not had more than $7,000,000 in net worth and 500 employees at the time the civil action was initiated. Id.; see Commissioner, Immigration & Naturalization Serv. v. Jean,
United Partition bears the burden of establishing that it meets these requirements, except that the government has the burden to show that its position was substantially justified. See White v. Nicholson,
As a waiver of sovereign immunity, EAJA must be “strictly construed.” Levernier Constr. Inc. v. United States,
ANALYSIS
A. Substantial Justification
The government bears the burden of proving that its litigation position was “substantially justified.” See White,
The government’s position “can be justified even though it is incorrect, and it can be substantially justified if a reasonable person could think it correct.” Manno v. United States,
The government supports the proposition that its overall position in this litigation was substantially justified by making two arguments. First, the government contends that it was correct in its conclusion that United Partition’s wall components did not meet the Class A fire rating as required by the contract and therefore that it was justified in terminating the contract for default on that ground. Def.’s Opp’n at 8. Second, the government argues that “it reasonably believed that even if the Air Force lacked authority to terminate United’s contract, United was not prejudiced by this alleged procedural error.” Id. at 7-8.
The government’s contention regarding the fire rating of the modular walls supplied by United Partition was one of a number of alleged defects asserted by the government as United Partition’s construction was nearing completion. None of the other asserted defects were valid. United Partition II, 90 Fed.CL at 81-83, 93-95. In effect, the Air Force’s assertion of numerous defects complicated the interaction between the two parties. Focusing specifically on the discourse between the Air Force and United Partition respecting the fire rating of the walls, the parties looked to information regarding components of the walls provided by the manufacturers of those components, which information had been supplied by United Partition to GSA in conjunction with the FSS contracting process. Id. at 83-84. The Air Force did not then cause the wall components to be tested nor did it require United Partition to do so. Id. at 84. However, the terms of the discourse between the parties regarding the walls should have alerted both parties to the fact that the fire classification of the walls had to be referred to GSA’s contracting officer and could not be definitively addressed by the Air Force’s contracting officer.
The pertinent procedural requirements for default termination were specified in the FAR and the GSA Contract. United Partition II, 90 Fed.CL at 88. The “Termination for Default” provision of the FAR provided, “[s]hould the contractor claim that the failure was excusable, the ordering office shall promptly refer the matter to the schedule contracting office.” FAR § 8.405-5(a)(2) (1999). The “Disputes” provision of the FAR provided, “[t]he ordering office shall refer all unresolved disputes undеr orders to the schedule contracting office for action under the Disputes clause of the contract.” FAR § 8.405-7 (1999). The GSA contract contained a “Default” clause allowing the ordering officer to “exercise the same right of termination” as the GSA contracting officer,
There is no ambiguity in these provisions, and their mandatory language leaves no room for doubt. Nevertheless, the Air Force contracting officer terminated United Partition’s contract for default after United Partition raised an excusability defense. See United Partition II,
The government persisted in its prоcedural error notwithstanding the decisions by the Board and this court that the Air Force’s contracting officer did not have authority to terminate the contract for default. Even at this post-judgment stage of the proceedings, the government contends that it “reasonably believed that the Court’s previous opinion [in United Partition I ] dealt only with United [Partition’s] claim, not whether the Air Force lacked authority to terminate United [Partition’s] contract for default.” Def.’s Opp’n at 7. To the contrary, in United Partition I, the court explicitly held that “the Air Force’s contracting officer lacked the authority to issue the final decision that it did issue, in light of these contractual and regulatory provisions and the fact that United Partition raised an excusability defense.” United Partition I,
Importantly, the Air Force compounded its procedural and substantive errors by barring United Partition from the work site and not providing United Partition with an opportunity to cure the one asserted defect that had validity. United Partition II,
The government also urges the court to find that its position was substantially justified because, even if the court did not accept all of the government’s arguments, it accepted the government’s “primary argument” when it “agree[d] with the [government that the walls of the modular building, and thus the building itself, failed to meet the contract specifications.” Def.’s Opp’n at 7. The government points to a recent ruling of this court for the proposition that when the court accepts the government’s “primary argument,” it may find substantial justification for the government’s position, despite the plaintiffs success on the merits. See id. (citing Klinge Corp. v. United States, No. 08-551,
The decision in Klinge is not helpful to the government chiefly because in this ease, the court did not accept the government’s primary argument. Besides arguing here that it rightfully terminatеd United Partition’s
Additionally, in Klinge, the court noted that “[t]he points [respecting] which [it] agreed with plaintiff were not, ultimately, controlling as to the principal relief sought, an injunction.”
Overall, in this ease, the “mutability of the agency’s position ... detracts from the asserted reasonableness of the agency’s action below.” California Marine Cleaning, Inc. v. United States,
The government was also “far from consistent” in its position as to the fire rating of the wall systems — a particularly troubling fact given that the flammability of the wall systems served as its primary reason for the termination of the contract. See id. at 85, 91. Although the government took numerous positions regarding the fire rating of the wall panels, it terminated the contract because it believed, without testing, that “the hardboard was ‘a highly flammable product,”’ apart from the vinyl covering. Id. at 93 n. 27 (internal citation omitted). Under the contract, the Air Force had a right to inspect and test the wall system to determine whether it met the terms of the contract, and it had the right to compel United Partition to do the same, but it could nоt make a finding that the walls were non-conforming without such testing. Id. at 93. The Air Force did just that, however, and demanded that United Partition cease all work on the property and never allowed United Partition back to Luke AFB, thereby depriving United Partition of any opportunity to cure the defects in its performance. Id. at 81, 90.
The government’s inconsistent positions on the decisive issues of this case undermine its
B. Fees and Expenses
A prevailing party may recover “reasonable” fees and expenses under EAJA. See 28 U.S.C. § 2412(d)(2)(A). In deciding what constitutes “reasonable” fees and expenses, “[t]he trial court has considerable discretion[,]” Information Sciences Carp. v. United States, 88 Fed.Cl. 626, 634 (2009) (quoting Hubbard v. United States,
1. “Incurred ” Fees.
United Partition bears the burden of proving that it “incurred” the fees and expenses that it seeks to recover. See 28 U.S.C. § 2412(d)(1)(A). A plaintiff “incurs” fees and еxpenses for the purposes of EAJA if it has paid those fees and expenses or if there is an “express or implied agreement that the fee award will be paid over to the legal representative.” Phillips v. General Servs. Admin.,
The government argues United Partition did not “incur” the hours it claims because the hours were “written off’ or billed at a rate of “$0.00.” See Def.’s Rebuttal to Pl.’s Reply to Def.’s Resp. to Pl.’s Appl. for Fees and Expenses Pursuant to the Equal Access to Justice Act (“Def.’s Rebuttal”) at 1-3. Alternatively, the government argues that because United Partition’s fee arrangement with its counsel provides that some portion of its fees may be reduced even if United Partition did “incur” some attorneys’ fees, it is impossible to determine the precise amount. See id. at 4-5. United Partition avers that the decision to not list the hourly rates in the monthly billing statements was “[b]ased on the agreement to defer fees” and “internal accounting reasons,” and that the use of the phrase “write off’ was to account for the initial retainer and the implementation of the revised fee agreement. Pl.’s Reply, Ex. B ¶ 19 (Aff. of Laurence Schor (Sept. 20, 2010)).
In connection with retaining a successor counsel in the ease, United Partition entered into a two-step fee agreement with that counsel.
The use of the billing rate of “$0.00” comports with United Partition’s fee agreement. The fee agreement specified that a possible reduction would diminish the total fee, not the hours for which United Partition was billed or the rate at which those hours were billed. See Pl.’s Reply at Ex. B. Consequently, United Partition’s counsel could use an ostensible billing rate of “$0.00” in anticipation that the total fee would be established at the conclusion of the litigation. The timing of the emergence of the billing practice at issue supports United Partition’s explanation as well. The “$0.00” billing rate first appears in United Partition’s invoices to account for time expended in late April 2005, see Pl.’s EAJA Appl., Ex. F at 101 (Asmar, Sehor & McKenna Itemized Billing), and the phi’ase “write off’ accounts for time expended in May 2005. See id. The disputed billing practices thus arose at the time that United Partition entered its revised fee agreement, on or about May of 2005. See Pl.’s Reply, Ex. B ¶¶ 13-16, 22.
Alternatively, the government claims that because “some or all of the additional fees may be written off once the EAJA application process is completed,” it is impossible to determine the amount of fees United Partition incurred beyond its initial lump sum payment. See Def.’s Rebuttal 4-5.
United Partition is obligated to pay to its counsel “any and all EAJA fees.” Pl.’s Reply, Ex. B ¶ 16; id., Ex. C ¶ 11. The plaintiff in Phillips was not responsible for any further fees beyond her preliminary lump-sum payment, if EAJA fees were not awarded. See
The government contends that United Partition has improperly requested attorneys’ fees incurred prior to the filing of its claims in this court. See Def.’s Opp’n at 14-15. Most of those fees relate to the proceedings before the Board which antedated United Partition’s complaint. Textually, EAJA authorizes a court to award fees related to an “adversary adjudication.” See 28 U.S.C. § 2412(d)(3). In full, 28 U.S.C. § 2412(d)(3) provides:
In awarding fees and other expenses under this subsection to a prevailing party in any action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Cоde, or an adversary adjudication subject to the Contract Disputes Act of 1978, the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such section, unless the court finds that during such adversary adjudication the position of the United States was substantially justified, or that special circumstances make an award unjust.
(Emphasis added). Accordingly, this court may only award United Partition fees and expenses incurred prior to the litigation in this court if United Partition was subject to or initiated “an adversary adjudication” of one of the two types specified in 28 U.S.C. § 2412(d)(3), which involve actions in court arising after a non-judicial but adversarial disposition.
An appeal to the Board pursuant to the Contract Disputes Act is an action “subject to the Contract Disputes Act of 1978” and is a proceeding listed under 5 U.S.C. § 504(b)(1)(C). See 5 U.S.C. § 504(b)(1)(C) (“adversary adjudication” includes, among other proceedings, “any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals as provided in section 8 of the Act (41 U.S.C. 607).”); see also 41 U.S.C. § 607(a)(1) (empowering the Secretary of Defense to create the Board). Thus, an аppeal to the Board could qualify as an “adversary adjudication,” within the meaning of Section 2412(d)(3). See also United Constr. Co., Inc. v. United States,
However, the Board never conducted an “adversary adjudication” in United Partition’s case. To the contrary, the Board dismissed United Partition’s claims for lack of jurisdiction. See United Partition, ASBCA Nos. 53915, 53916,
The government coi’rectly points to May 15, 2003 as the first date on which the invoices show that United Partition’s attorneys began to prepare for litigation in this court. See Pl.’s EAJA Appl., Ex. G at 10 (Best, Best & Krieger Itemized Billing) (stating that attorney Erie Jeppson “[b]eg[a]n [djrafting [c]omplaint [f]or [fjiling [wjith Court of Federal Claims”). Although United Partition necessarily would have performed preliminary factual and legal research before May 15, 2003, the court cannot determine with any reasonable degree of certainty the hours representing that work. Therefore, United Partition may recover only those fees and expenses incurred from May 15, 2003 onwards. See Oliveira v. United States,
Additionally, United Partition may only recover those fees and expenses arising after May 15, 2003 to the extent that they were incurred solely in preparation for the litigation before this court. See Oliveira,
3. Degree of success.
The government also argues that United Partition’s award should be reduced because it achieved only “limited success.” See Def.’s Opp’n at 12. United Partition responds that its success in the case was “complete” or at least nearly so, and thus justifies a full award of attorneys’ fees and expenses. See Pl.’s Reply at 10.
“The most critical factor” a court must consider in determining whether to adjust an award of attorneys’ fees is “the degree of success obtained” in the litigation. Hensley,
United Partition argued, based on a “common core of faets[,]” Hensley,
In general, “[t]here is no precise rule or formula for making” degree-of-success determinations, and the court “necessarily has discretion in making this equitable judgment.” Hensley,
This court has concluded that a plaintiff experiences “partial or limited success” typically where the plaintiff fails on the majority of its claims or recovers significantly less damages than the amount it originally sought. See, e.g., Dalles Irrigation Dist.,
At an early procedural stage of this case, United Partition successfully resisted a claim by the government that the action should be dismissed on jurisdictional grounds. See United Partition I,
Overall, United Partition experienced substantial success: it prevailed at each critical procedural stage of the litigation, succeeded on the merits of its claim, successfully defended against the government’s counterclaim, and recovered nearly 81% of the damages that it sought. See United Partition II, 90 Fed.Ci. at 90-95. The court’s findings for the defendant on the nonconforming walls and removal of two buildings and the consequent 19% offset to United Partition’s damages reflected ancillary aspects of the dispute between the parties. United Partition prevailed on all of the major issues in the ease, and its EAJA award should not be diminished on grounds of partial success. See Naek-el,
Accordingly, the court finds that the “overall relief obtained by” United Partition is more appropriately characterized as an “excellent result” rather than a “limited success” and that the award of full attorneys’ fees is commensurate to that result. See Hensley,
4. COLA adjustment.
EAJA potentially allows a cost-of-living adjustment (“COLA”) to be made to the statutory $125 per-hour cap on the award of attorneys’ fees. See 28 U.S.C. § 2412(d)(2)(A)(ii). Such an adjustment should be freely granted. See Baker v. Bowen,
To receive an award adjusted for the cost of living, a plaintiff must “allege[ ] that the cost of living has increased, as measured by the Department of Labor’s Consumer Price Index (‘CPI’),” California Marine Cleaning,
March 1996 serves as the starting point to calculate the applicable COLA. See Lion Raisins,
Because United Partition retained the services of two law firms in sequence, the court will calculate the attorneys’ fees of each separately by using two mid-points. United Partition engaged the services of Mr. Dauer from October 2001 to December 2003, see PL’s EAJA Appl. at 7; however, United Partition may only recover those fees incurred from May 2003 onwards. The mid-point for Mr. Dauer’s services is thus August 2003. Mr. Schor began providing legal services to United Partition in February 2005 and ended those services in September 2010, with the pending EAJA application, see PL’s EAJA Appl. at 7, yielding a mid-point of November 2007.
5. Attorneys’ fees related to United Partition’s non-testifying expert.
The government urges the court to exclude all attorneys’ fees relating to an expert retained by United Partition because that expert “did not help United or in any way assist United in prevailing in this action.” See Def.’s Opp’n at 14. United Partition avers that the retention of and work with its expert was a reasonable step taken in response to the government’s litigation position. See Pl.’s Reply at 11. United Partition does not seek to recover the compensation paid to its expert but rather only the fees of its attorneys in working with its non-testifying expert.
Unitеd Partition’s invoices reveal that it retained its expert in an effort to address the fire rating of the walls it provided to Luke AFB. See Pl.’s EAJA Appl., Ex. F at 58-64. In light of the government’s position that the inadequate fire rating of the walls justified the termination for default, United Partition’s retention of an expert to investigate that issue cannot be described as unnecessary. The fact that United Partition did not use the expert to testify does not mean that the expert contributed nothing to counsel’s preparation for trial of the case. Experts may explore certain issues for a party and provide meaningful assistance without testifying at trial or providing an ultimately successful defense respecting the issue for which they were retained. See Baldi Bros. Constructors,
6. Fees for work by paralegals and law clerks.
A prevailing рarty that meets EAJA’s other requirements may also recover fees for paralegals and law clerks at prevailing market rates. See Richlin Sec. Serv. Co. v. Chertoff,
United Partition seeks $14,512.50 in fees for paralegals and law clerks. See Pl.’s Second Supp. EAJA Appl. at 1. It urges the court to adopt the Laffey Matrix as a guide to the prevailing market rate for paralegals in the Washington, D.C. area and award it $100 per hour and $125 per hour for the paralegal services associated with Mr. Dauer’s and Mr. Schor’s efforts, respectively. See Pl.’s EAJA Appl. at 7. The government urges the court to reduce United Partition’s paralegal claims because “[b]oth EAJA case law and other recent decisions indicate that the rates for paralegals are generally at, and often below, $100 per hour.” Def.’s Opp’n at 17. The government also requests that the court deduct fees for hours billed by paralegals for their performance of clerical tasks. Id.
Subsequent to the Supreme Court’s 2008 ruling in Richlin, judges of this court have taken divergent approachés to determining the “prevailing market rate” for paralegals. For example, the court has awarded paralеgal and law clerk fees at the rates at which those hours were actually billed to the plain
Given that the Laffey Matrix is specifically tailored to provide prevailing market rates for paralegals in the District of Columbia and has aсhieved “broad acceptance” in the federal courts of this region, serving “as a guide in nearly every conceivable type of case,” Miller v. Holzmann,
The government also objects to United Partition’s fees for hours billed by paralegals for preparing and filing exhibits, contending that these are clerical tasks. See Def.’s Opp’n at 17-18. The filing of pleadings is clerical work. See Dalles Irrigation Dist.,
Where nonreimbursable tasks are included in the same invoice as reimbursable tasks, the court may approximate the amount of time that would have been expended on each task and deduct the hours accordingly. See Information Sciences Corp.,
7. Fees incurred in preparing and defending the EAJA application.
United Partition is also entitled to recover fees and expenses incurred in preparing and defending its EAJA application without regard to whether the government’s position in opposing the application, as contrasted to its overall position in the litigation, was substantially justified. Jean,
United Partition spent 69.9 hours preparing its EAJA application. See Pl.’s Supp. EAJA Appl. at l.
8. Miscellaneous expenses.
United Partition seeks to recover legal research expenses, transcript fees, GSAR forms, PACER fees, clerk’s fees, copying expenditures, a parking fee, postage, long-distance phone calls, filing and service fees, and shipping expenses. See Pl.’s EAJA Appl., Ex. K (Fees and Cost Recovery Charts). Those outlays to which the government does not object will be included in United Partition’s award as “expenses” under 28 U.S.C. § 2412(d)(1)(A). The government objects only to the recovery of photocopying expenses and court reporter fees, arguing that because such items are listed as “costs” under 28 U.S.C. § 1920, United Partition may not recover them as “expenses” under 28 U.S.C. § 2412(d)(1)(A). See Def.’s Opp’n at 17-18.
The government is correct that photocopying and court reporter fees are listed as “costs” under 28 U.S.C. § 1920, and that United Partition did not receive a judgment for costs. See United Partition II,
The Federal Circuit’s decisions in Bennett v. Department of the Navy,
The Federal Circuit revisited the issue in Oliveira. In Oliveira, the Claims Court had disallowed plaintiffs expenditures for photocopying, printing and binding of briefs, telephone, postage, delivery services, and admission to the court’s bar. See Oliveira v. United States,
In Oliveira, the Federal Circuit reversed the Claims Court on its second ground for disallowing the expenses, rejecting its distinction between exceptional and ordinary expenses. See Oliveira,
Given the seeming inconsistencies between Bennett and Oliveira, it is not surprising that this court has since fluctuated on whether or not expenditures listed as “costs” under Section 1920 can be awarded as “expenses” under Section 2412. Compare Hopi Tribe v. United States,
A modest measure of clarity is found in the Federal Circuit’s subsequent references to Bennett. The Federal Circuit has cited Bennett for the proposition that “costs or expenses have been defined as photocopying, deposition costs, witness fees, and other expenses” and “[s]ueh items are not recoverable absent express statutory authorization for an award of ‘costs’ or ‘expenses.’ ” Bleschke v. United States Postal Serv.,
Thus, the Federal Circuit’s citations to Bennett rеfer to items listed as “costs” under Section 1920 as also constituting “expenses” and indicate that both “costs” and “expenses” are allowable so long as there is statutory authorization for costs or expenses. The Federal Circuit’s recasting of Bennett and its later decision in Oliveira persuade the court that Oliveira provides the controlling standard for this question. See also Cook v. Brown,
CONCLUSION
For the reasons stated, United Partition’s application for attorneys’ fees and expenses under EAJA is GRANTED IN PART. United Partition is awarded attorneys’ fees in the amount of $101,876.85, and costs and expenses of $8,545.05, for a total of $110,421.89. The clerk shall enter judgment for United Partition in the amount of $110,421.89.
It is so ORDERED.
Notes
. Earliеr, the court had denied a motion by the government to dismiss United Partition’s complaint for lack of subject matter jurisdiction. See United Partition Sys., Inc. v. United States,
. In its initial application, United Partition sought $99,394.42 in attorneys' fees and expenses, $11,750.00 in fees for a paralegals and law clerks, and $7,384.91 in other expenses. Pl.’s Appl. for Fees and Expenses Under the Equal Access to Justice Act ("Pl.’s EAJA Appl.’’) at 1. A supplement filed July 30, 2010, requested an additional $8,487.64 in fees for attorneys and $2,412.50 in fees for a paralegal and law clerk. Pl.’s Supp. Appl. for Fees and Other Expenses Under the Equal Access to Justice Act (“Pl.’s Supp. EAJA Appl.”). A second supplement filed September 28, 2010, requested further amounts consisting of $4,679.95 in fees for attorneys, $350.00 in fees for a paralegal and law clerk, and $1,174.30 in other expenses. Pl.’s Second Supp. Appl. for Fees and Other Expenses ("Pl.’s Second Supp. EAJA Appl.”) at 1.
. This description provides a summary of the facts addressed in greater detail in United Partition II,
. The president of a competing contractor, Allied Modular, wrote to the Air Force listing these items as defects and urging that United Partition’s contract be terminated for defаult and that a reprocurement contract be issued to his firm. United Partition II,
. The government points to the fact that United Partition originally submitted its claim to the Air Force, not the GSA, and thus never claimed during the administrative proceeding that the Air Force contracting officer lacked authority to terminate its contract for default. Def.'s Opp’n at 6 n. 2. However, both the pertinent provisions of the FAR and the GSA contract required the contractor’s claim to be referred by the ordering office, here the Air Force contracting officer, to the GSA contracting office for decision. United Partition thus could not have submitted its claim directly to GSA’s contracting officer.
. United Partition’s first counsel, Paul Dauer, provided representation throughout the proceedings on defendant's motion to dismiss that resulted in the decision in United Partition I, but in January 2005, United Partition retained Laurence Schor, then a partner of McManus, Schor, Asmar & Darden, L.L.P. to represent it in the litigation. See Pl.’s Reply, Ex. A at 1-3 (Representation Agreement (Jan. 19, 2005)).
. United Partition's recent invoices submitted with its supplement to its EAJA application do not reflect a "$0.00” billing rate. See Pl.’s Supp. EAJA Appl. at Ex. A (Asmar, Schor & McKenna, PLLC Invoice #926 (July 20, 2010)). The government asserts that these invoices are inconsistent with United Partition's claim that the fees will be deferred until after the EAJA litigation. See Def.'s Rebuttal at 4. In light of the govern-merit's argument that the “$0.00” billing rate means that United Partition did not "incur” any fees, see Def.’s Response at 9-11, United Partition’s decision to use billing rates in its supplemental application does not undermine its claim that its fees will not be collected until such time as United Partition’s EAJA award is determined.
. Citing KMS Fusion, Inc. v. United States,
. The mid-point in time could be October or November 2007, but, because counsels’ time, is more heavily weighted toward the latter half of the entire period, the later month has been used.
. The formula for the adjusted rate is: $125.00 x (Mid-Point CPI)/(March 1996 CPI). See Lion Raisins, SI Fed.Cl. at 519-20 n. 19. The midpoint CPI for August 2003 is 184.6, and the midpoint CPI for November 2007 is 210.2. Pl.'s EAJA Appl. at Ex. I. The March 1996 CPI is 155.7. Id.
. Because United Partition does not seek an award of fees for the expert's services, there is no need to consider the limitations imposed by 28 U.S.C. § 2412(d)(2)(A), which refers to an “expert witness" and requires that any report prepared by the expert be found "necessary for the preparation of the party’s case.”
. The Matrix is based on the rates allowed by the U.S. District Court for the District of Columbia initially in Laffey v. Northwest Airlines, Inc.,
. One of Mr. Schor's paralegals, Darryl J. Taylor, was billed at a rate of $110.00 per hour for 6.3 hours. Pl.’s EAJA Appl., Ex. F at 104-108. United Partition cannot recover fees for these hours at a rate higher than that at which they were actually billed. See KMS Fusion,
. United Partition’s original counsel spent 6 hours researching EAJA and preparing a memo on this topic in June of 2003. See Pl.’s EAJA Appl., Ex. G at 11 (Invoice 440999 (Aug. 14, 2003)). Because there is no evidence that United Partition benefitted from this work, these hours will be excluded from those subject to the EAJA final award.