The Secretary of Health and Human Services appeals from a judgment entered April 25, 1986, in the United States District Court for the Northern District of New York, McCurn, J., awarding attorney's fees and costs to Myron S. Aston, Jr. pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, as a result of Aston's successful suit for social security disability benefits. We amend the judgment and affirm the judgment as amended.
Before: MANSFIELD, MESKILL and MINER, Circuit Judges.
The Secretary of Health and Human Services (Secretary) appeals from Judge McCurn's award of attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982), as a result of a successful suit for social security disability benefits brought by Myron S. Aston, Jr.
Aston brought the underlying action to appeal a final decision by the Secretary that Aston was not disabled and denying him benefits. The district court reversed the Secretary and remanded for calculation of benefits. Aston received $88,000 in past due benefits and a continuing award of $834.40 per month.
On April 25, 1986, the court concluded that the Secretary's opposition to Aston's claim for benefits lacked substantial justification and awarded Aston attorney's fees in the amount of $17,000 and costs of $555.55. The award of attorney's fees was based on 200 hours, as reduced by the court from Aston's requested 230 hours, at a rate of $85 per hour. The Secretary complains that the entire award is excessive. We disagree but reduce the hourly rate to $75 and affirm the judgment as amended.
The Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA), provides that a court shall award attorney's fees to a prevailing party in a suit against the United States unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. International Woodworkers of America v. Donovan, 769 F.2d 1388, 1390 (9th Cir. 1985). The Secretary does not contest the court's determination that her position was not substantially justified. The only issue on this appeal is whether the award of $17,000 in attorney's fees is excessive.
The district court based its award on an hourly rate of $85. The EAJA, however, provides that:
The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . .
(ii) attorney fees 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).
The transcript reveals virtually no explanation of the $85 per hour figure. The statute's $75 per hour maximum, and its requirement of special factors for increases above that maximum, are mentioned nowhere. The only discernible explanation in the record suggests that the court increased the hourly rate because of the large disability judgment ($88,000) obtained by Aston and a contingency fee agreement whereby Aston agreed to pay his attorneys twenty-five percent of the judgment, J. App. at 12-13, which would have resulted in a fee of $22,000. See J. App. at 12 (noting $22,000 figure).*fn1 Although the district court's findings are not clear in this regard, it appears that the court divided the $22,000 figure by the 230 ...