Appeal from an order of the United States District Court for the Northern District of New York, Howard G. Munson, Chief Judge, awarding Trichilo $88 per hour attorney's fee under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Affirmed.
Before VAN GRAAFEILAND, PRATT, and ALTIMARI, Circuit Judges.
This appeal raises two issues under the Equal Access to Justice Act ("EAJA") that have divided the courts that have considered them. First, the secretary of the Department of Health and Human Services ("the secretary") argues that the district court erred in awarding plaintiff Trichilo attorney's fees under 28 U.S.C. § 2412(d) in the amount of $88 per hour, based on the statutory rate of $75 per hour plus a cost-of-living adjustment measured from October 1981, contending that any cost-of-living increase should instead be measured from 1985, when the statute was reenacted after having lapsed in 1984. Second, the secretary challenges the district court's award of counsel fees for the time spent litigating the fee issue itself, arguing that "fees for fees" are not available when the government's position on the fee issue, looked at in isolation, is "substantially justified". We reject the interpretation of the statute offered by the secretary on both issues, and affirm the judgment of the district court.
The merits of the underlying dispute between Trichilo and the secretary over Trichilo's entitlement to disability benefits are irrelevant to this appeal, since the secretary now concedes that the department's position was not "substantially justified". Under the statute, therefore, counsel fees for plaintiff are authorized. 28 U.S.C. § 2412(d). Counsel for Trichilo submitted to the district court a fee application claiming 46.9 hours, including 4.8 hours spent preparing the motion for fees, at an hourly rate of $88. The $88 hourly rate represented a 17 % cost-of-living increase over the $75 maximum fixed in the original statute, an increase that counsel justified by submitting documentation relating to changes in the Consumer Price Index ("CPI") since 1981. Later, counsel requested fees for the additional 8.3 hours spent in responding to the government's opposition to the fee application. Thus, the total number of hours claimed was 55.2.
The secretary opposed this application on several grounds, only one of which is relevant on appeal. The secretary argued that the cost-of-living adjustment allowed by § 2412(d) should be measured from 1985, the date of the reenactment of the statute, rather than 1981, when congress originally established the $75-per-hour cap on attorney's fees but gave district courts discretion to provide for cost-of-living adjustments. (The "fees for fees" issue was not raised by the secretary below.)
Noting a split in authority on the question of whether to measure a cost-of-living increase from 1981 or 1985, the district court ruled that the earlier date was appropriate. Trichillo v. Secretary of Health & Human Services, 647 F. Supp. 125 (N.D.N.Y. 1986). Chief Judge Munson followed the reasoning of the D.C. circuit in Hirschey v. F.E.R.C., 250 U.S. App. D.C. 1, 777 F.2d 1, 5 (D.C. Cir. 1985), and rejected a contrary position of the sixth circuit in Chipman v. Secretary of Health & Human Services, 781 F.2d 545, 547 (6th Cir. 1986). Perhaps reflecting how often the government takes positions that are not "substantially justified", this question has also been addressed by numerous other courts. Cases agreeing with Hirschey including Sierra Club v. Secretary of the Army, No. 86-1940, slip op. at 18-27 (1st Cir. June 3, No. 84-C-7394 (N.D. Ill. Feb. 20, 1987) (available on LEXIS); Ford v. Bowen, 663 F. Supp. 220 (N.D. Ill. 1987) (available on LEXIS); Jackson v. Heckler, 629 F. Supp. 398 (S.D.N.Y. 1986); Metzcher v. Bowen, No. 85-2233 (E.D.Pa. July 7, 1986) (available on LEXIS). Other courts have adopted the reasoning of Chipman; Arroyo v. Heckler, No. 84-0723 (E.D.Pa. Feb. 12, 1987); Barry v. Heckler, 638 F. Supp. 444 (N.D. Cal. 1986); Bunn v. Bowen, 637 F. Supp. 464 (E.D.N.C. 1986); McKinnon v. Bowen, 664 F. Supp. 195 (E.D.Pa. Dec. 1986) (available on LEXIS); Allen v. Schweiker, 666 F. Supp. 720 (E.D.Pa. July 1986) (available on LEXIS), appeal docketed, No. 86-1705 (3d Cir. 1986); Trahan v. Regan, 625 F. Supp. 1163 (D.D.C. 1985). Having reviewed these cases, we conclude that the district court correctly adopted the position of Hirschey and its progeny in awarding counsel his requested $88 per hour fee.
In 1980 congress adopted the EAJA to deal with the perceived problem "that certain individuals * * * may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights * * *. The purpose of this bill is to reduce the deterrents * * * by [awarding] attorney fees, expert witness fees and other expenses against the United States, unless the Government action was substantially justified." H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 5-6, reprinted in 1980 U.S. Code Cong. & Ad. News 4984, 4984. The EAJA, codified at 28 U.S.C. § 2412, placed a cap of $75 per hour on recoverable attorney's fees, 28 U.S.C. § 2412(d)(2)(A), "unless the court determines that an increase in the cost-of-living * * * justifies a higher fee." Id.
Courts implementing the cost-of-living provision routinely set the date from which such adjustments should be calculated as October 1, 1981, the effective date of the EAJA, see, e.g., Action on Smoking and Health v. C.A.B., 233 U.S. App. D.C. 79, 724 F.2d 211, 218 (D.C. 1984), and we agree that October 1981 is the appropriate measuring point for the first incarnation of the EAJA.
By its terms, however, the EAJA expired in 1984, the result of a built-in sunset provision. The legislative history makes clear that, as originally enacted, the EAJA was "intended to be a limited experiment" the effects of which would be evaluated at the end of the trial period. See 1980 U.S. Code Cong. & Ad. News, supra, at 4995-96. Toward the end of the three year experiment, congress surveyed the results and, finding them good, approved a continuation of the EAJA, see H.R. Rep. No. 99-120, 99th Cong., 1st Sess. 6, reprinted in 1985 U.S. Code Cong. & Ad. News 132, 134. President Reagan vetoed the bill, but in 1985 signed a reenactment of the EAJA that did become law.
The exact means used by congress to reenact the EAJA are a matter of dispute between Trichilo and the secretary, but we regard their debate about whether congress amended the original act by repealing the repealer and thus revived the law, or instead reenacted the substantive provisions as new law and then made them permanent by repealing the repealer, as much ado about little, and wholly academic. See Sierra Club, supra, slip op. at 20 n.7. We assume, without getting into the twists and turns of the legislative labyrinth, that congress passed a "new" EAJA in 1985, but that the only difference between it and the "old" EAJA relevant for present purposes are that it is permanent, because congress did, in fact, repeal the sunset provision, and that congress left untouched the provision of § 2412(d)(2)(A) allowing for a cost-of-living increase from a $75 base cap.
The upshot of this history, according to the secretary, is that congress decided in 1985 to leave the $75 cap intact, and start the cost-of-living "meter" over again, with increases measured from 1985 dollars. See Bunn, 637 F. Supp. at 475 ("Since Congress chose not to increase the $75 cap [in 1985], despite the national rise in the cost of living since the EAJA's original enactment in 1980, the courts are not at liberty to do so."). We reject this argument as contrary to the ...