United States Court of Appeals,
Fifth Circuit.
No. 94-30217.
Paula HALL, as next friend for Robert Williams IV, Plaintiff-
Appellant,
v.
Donna SHALALA, Secretary of Health and Human Services, Defendant-
Appellee.
April 25, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before BARKSDALE and PARKER, Circuit Judges, and COBB, District
Judge*.
ROBERT M. PARKER, Circuit Judge:
Appellant appeals the amount of attorney's fees awarded under
the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
Finding no abuse of discretion, we affirm.
FACTS
Defendant-Appellee, Donna Shalala, Secretary of Health and
Human Services ("the Secretary") denied Social Security benefits to
Plaintiff-Appellant Robert Williams, IV ("Williams"). Paula Hall,
("Hall") as next friend for Williams, brought an action in federal
court for review of the Secretary's decision. The case was
remanded for reconsideration in light of the proper legal
standards, and Williams was awarded benefits.
Hall then moved for attorney's fees before the magistrate
*
District Judge of Eastern District of Texas, sitting by
designation.
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judge pursuant to the EAJA, seeking fees in excess of the $75 per
hour statutory cap based on inflation since 1981, the year EAJA was
enacted. The magistrate recommended that Hall be awarded fees in
the amount of $75 per hour and Hall objected. The district court
adopted the magistrate judge's recommendation and awarded attorneys
fees of $75 per hour.
STANDARD OF REVIEW
This Court will modify an award of attorney's fees made under
the EAJA only if the court below abused its discretion in setting
the amount of the award. Pierce v. Underwood, 487 U.S. 552, 570,
108 S.Ct. 2541, 2553, 101 L.Ed.2d 490 (1988).
ANALYSIS
The EAJA provides that attorney's fees "shall be based upon
prevailing market rates for the kind and quality of the services
furnished," but "shall not be awarded in excess of $75 per hour
unless 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).
Hall sought attorney's fees in excess of $75 per hour, arguing
that $111.77 per hour, derived by adjusting the $75 statutory cap
by the cost of living increase between 1981 and 1994, was a
reasonable rate. The district court recognized that "while the cap
has now changed because of inflation to approximately $111 per
hour, that cap remains a ceiling under which $75 per hour attorney
fees awards can certainly be awarded." The district court found
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that "fee awards of $75 per hour in this area satisfy the "dual
purpose' of the EAJA § 2412(d) "to ensure adequate representation
for those who need it and to minimize the cost of this
representation to taxpayers,' " citing Baker v. Bowen, 839 F.2d
1075 (5th Cir.1988). The court went on to note that an upward fee
adjustment based on the limited availability-of-attorney factor was
likewise not warranted by the evidence in this case.
Did the Court Consider the Right Factors?
First, Hall contends that the district court erred by failing
to take into account the increase in the cost of living and to
adjust the cap upward from $75. We disagree. The district court
specifically recognized that the statutory cap, adjusted for
inflation, was approximately $111 at the time of the award in this
case. Nonetheless, the district court found that a $75 per hour
award, well below the $111 ceiling, satisfied the purposes of the
EAJA.
Second, Hall complains that the district court erred in
considering the special statutory factor. Hall does not take the
position that the limited number of attorneys available to handle
these cases, or any other special factor, warranted an above-cap
upward adjustment. Instead, she argues that once the $75 cap has
been adjusted for inflation, the EAJA fee analysis reverts to the
normal "reasonableness" determination, under which the special
factors referenced in the statute are not controlling. We
understand this argument as a contention that the district court's
consideration of the availability-of-attorney factor was error. It
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was not. The court merely considered the special factor set out in
the statute that could potentially have impacted the question
before it. He determined that it did not. Neither the
consideration of the factor nor the conclusion that it did not
impact the outcome was error.
Third, Hall contends that the district court erred in failing
to award "reasonable attorney fees ... based on the prevailing
market rates for the kind and quality of services furnished." 28
U.S.C. 2413(d)(2)(A). The Supreme Court has held that reasonable
rates are determined by reference to ".. those prevailing in the
community for lawyers of reasonably comparable skill, experience
and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104
S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). The Court further
indicated that the twelve factors set out in Johnson v. Georgia
Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974) are relevant
in the rate determination. Id. However, the Supreme Court has
made it equally clear that reasonable market rates for attorneys
cannot be considered as a special factor justifying an upward
adjustment of the cap. Pierce v. Underwood, 487 U.S. 552, 573, 108
S.Ct. 2541, 2554, 101 L.Ed.2d 490 (1988).
The question presented in this appeal is whether and to what
extent the special factors, particularly availability-of-attorneys,
control the determination of what is a "reasonable" attorney fee
within the range allowed by the cap. This Court has held:
[It is not necessary] that attorneys' fees awards track the
cost-of-living index for the geographical area. Although this
indicator is certainly significant, it may not be conclusive;
such a decision is within the discretion of the district
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court. In order to satisfy both goals of the provision,
however, rates should be increased only to the extent
necessary to ensure an adequate source of representation and
should never exceed the percentage by which the market rate
attorneys' fees have increased since the statute was enacted
in 1981.
Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir.1988).
The Supreme Court, in Pierce v. Underwood, 487 U.S. 552, 108
S.Ct. 2541, 101 L.Ed.2d 490 (1988), decided after Baker, excluded
the EAJA's cost of living provision from its review of EAJA's
special factors and treated cost of living adjustment as part of
the cap itself, which it termed "$75 cap (adjusted for inflation)"
or "$75 per hour (adjusted for inflation)." Pierce, 487 U.S. at
571-74, 108 S.Ct. at 2553-54. The separation of the cost of living
increase from the special factor analysis is appropriate under the
statute, which separates the cost of living authorization from the
special factor issue, authorizing an increase in attorney fees if
"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) (emphasis added). Baker likewise made
clear that this Court recognizes the two independent prongs for fee
adjustment. See Baker, 839 F.2d at 1985 n. 4.
The statute and the cases make it clear that the EAJA imposes
a $75 cap that can be exceeded only if the court determines that a
higher fee is justified by inflation or a special factor, such as
limited availability of attorneys. The cap, adjusted for
inflation, cannot be exceeded absent a finding of other special
factors not specifically delineated in the statute. However, a
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district court, in its discretion, may determine that a fee below
the established ceiling is a reasonable attorney's fee award based
on the facts of a particular case.
We hold that the district court was correct in adjusting the
$75 statutory cap upward to $111 due to inflation. The district
court was further justified in considering the goals of the statute
in arriving at a reasonable rate of attorney's fees within the cap.
In sum, the district court in this case did not abuse its
discretion in arriving at a reasonable hourly rate for Hall's
attorney.
Uniformity
The trial court recognized that:
the decision on whether or not to adjust for cost of living
increases is not an "individualized' one[ ] and other courts
in this district have in fact made upward adjustments based on
the cost of living increases. However, this court disagrees
with those other courts and finds that fee awards of $75 per
hour in this area satisfy the "dual purposes' of EAJA.1
In Baker, we held that a determination of the appropriateness of
increases based on the cost of living factor and the
availability-of-attorneys factor must be uniform among the Dallas
district courts. Likewise, these factors should be uniformly
applied by the New Orleans district courts. Although there appears
no justification in the record of this case for remand, we invite
the district judges of the Eastern District of Louisiana to address
1
See, e.g., Mark v. Shalala, Civil Action No. 92-1202,
Eastern District of Louisiana, wherein plaintiff's attorney's
fees were set at $111.77 per hour; Robinson v. Sullivan, Civil
Action No. 91-2216, Eastern District of Louisiana, wherein
plaintiff's attorney's fees were set at $100.
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any lack of uniformity in the district and to address the issue
with a view toward developing the required uniformity.
CONCLUSION
The attorney's fees award entered by the district court is
AFFIRMED.
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