Sorrentino v. U.S.

Full title: ROLLY J. SORRENTINO and JOANN M. SORRENTINO, husband and wife, Plaintiffs…

Court: United States District Court, D. Colorado

Date published: Jan 30, 2002

Civil Action No. 01-K-129 (D. Colo. Jan. 30, 2002)

Opinion

Civil Action No. 01-K-129

January 30, 2002

ORDER

JOHN L. KANE, Senior Judge United States District Court

In my January 8, 2002 Memorandum Opinion and Order granting Plaintiffs summary judgment, I denied Plaintiffs' application to receive $225.00 in attorney fees but granted them leave to resubmit their application with additional documentation. On January 22, 2002, Plaintiffs responded by filing "Plaintiffs' Documents in Support of Attorney's Fees," in which they renewed their request for the attorney fee award and produced statements from attorney Scott M. Estill and cancelled checks payable to Mr. Estill.¹ These documents demonstrate Plaintiffs paid Mr. Estill $225.00 in 2001 for spending 1.5 hours conferring with Mr. Sorrentino about this mailer at a rate of $150 per hour.

1 Plaintiffs also submitted a cancelled check demonstrating their payment of the $150.00 filing fee to this Court on January 23, 2001. This amount was included in the $344.00 (inadvertently stated as $384.00) in filing fees, service of process, postage and copying costs awarded to Plaintiffs in the January 8, 2002 Memorandum Opinion and January 9, 2002 Judgment.

Pursuant to 26 U.S.C. § 7430 (c)(B)(iii) and section 3.26 of Revenue Procedure 2001-13, attorney fee awards under section 7430 are capped at $140 per hour² unless the court determines a special factor requires a higher rate. Plaintiffs have not submitted a statement justifying a higher rate in this case. Accordingly, I have no basis to impose a billing rate higher than the $140 per hour rate permitted by the statute. Plaintiffs are therefore entitled to an award of $210.00 in attorney fees (1.5 hours at $140/hour) based on the documents submitted in their January 22, 2002 filing.

2 This hourly rate is higher than the $125 per hour rate stated in the Memorandum Opinion and Order as a result of the cost-of living adjustment provided in 26 U.S.C. § 7430 (c)(1)(B) and reported in section 3.26 of Revenue Procedure 2001-13.

For the reasons stated above and in the January 8, 2002 Memorandum Opinion and Order, IT IS ORDERED that Defendant shall pay Plaintiffs $210.00 in attorney fees.