The opinion of the court was delivered by: Larimer, District Judge.
Plaintiff, Josephina Ofray, commenced this action for review
of the Secretary's decision denying his application for
Supplemental Security Income (SSI) benefits. On February 27,
1989, this Court remanded the case for further administrative
proceedings. Pursuant to the Appeals Council's decision on
November 15, 1989 in plaintiff's favor, this Court entered an
Order and Stipulation discontinuing the action on January 30,
Plaintiff's attorney, Edwin Lopez-Soto, Esq., now moves for
an award of attorney's fees and costs under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff requests
$6,992.64 for 57.8 hours of work at $120.98 an hour. Plaintiff
arrived at this hourly rate by taking the statutory rate of $75
per hour and making a cost-of-living adjustment based on the
Consumer Price Index (CPI) for "Other Services."
Plaintiff admits that the "All Items" index has generally
been used in the past in EAJA cases, but argues that that does
not justify its continued use. Plaintiff contends that the
"Other Services" index more accurately reflects the cost of
In addition, after filing his motion, plaintiff informed the
Court that he had discovered what he considers an even more
appropriate index, the CPI for "Personal and Educational
Services," which expressly includes "legal" services. This
index is higher than either the "All Items" or "Other Services"
indices. Plaintiff therefore requests compensation at least
under the "Other Services" rate, and preferably at the
"Personal/Educational Services" rate.
The case law on this issue is sparse. The Government has
cited a Magistrate's report in Torres v. Sullivan, Civ. No.
B-86-431, (D.Conn. January 9, 1990), later affirmed by the
district court, which held that the "All Items" index should be
used, rather than the "personal expenses" index (it is unclear
whether the "personal expenses" index and the "Personal and
Educational Services" index are the same). The Magistrate
reasoned that the courts had always used the CPI for "All
Items," and that the plaintiff had offered no compelling reason
to deviate from that practice.
Plaintiff points to Davie v. Sullivan, Civ-88-1361T (W.D.N.Y.
February 9, 1990), in which Chief Judge Michael A. Telesca of
this Court granted a fee award to the same attorney in this
case, using the "Other Services" index. However, the Government
in Davie did not oppose the rate sought by plaintiff, so the
Court was not squarely faced with the issue, and did not
address it in its written decision.
The Court has discovered another EAJA case, Malick v.
Heckler, Civ.A. No. 85-4946, 1989 WL 831 (E.D.Pa. Jan. 9, 1989)
in which the court granted attorney's fees with a
cost-of-living adjustment based on the "services" index, which
the court found more accurate than the "All Items" index
advocated by the Government. The award was calculated at the
rate of $103.50 per hour.
The Second Circuit Court of Appeals does not appear to have
previously faced this issue. The Court has approved use of the
CPI in calculating cost-of-living increases under the EAJA, but
has not expressly endorsed any particular category of the CPI.
See, e.g., Trichilo v. Secretary, 823 F.2d 702, 704 (2nd 1987).
As noted, however, plaintiff essentially concedes that use of
the "All Items" index has been the customary practice in the
past, see, e.g., Ramon-Sepulveda v. Immigration &
Naturalization Service, 863 F.2d 1458 (9th Cir. 1988); Dabone
v. Thornburgh, 734 F. Supp. 195 (E.D.Pa. 1990); United States of
America v. Willens, 731 F. Supp. 1579 (S.D.Fla. 1990), and that
there is no controlling authority mandating the adoption of a
With regard to Congressional intent, neither the statute
itself nor the legislative history indicates explicitly that
Congress meant for a particular index to be used. For example,
the House Report states simply that an attorney may be
compensated at a rate in excess of $75 per hour where special
circumstances exist, such as "an increase in the cost of
living." H.R.Rep. No. 1418, 96th Cong., 2d Sess., reprinted in
1980 U.S. Code Cong. and Ad. News 4984, 4994.
Nevertheless, the use of the broad term "cost of living"
seems to suggest that Congress had in mind increases in the
overall cost of living, rather than increases in a specific
category of the CPI. Presumably, if Congress had intended that
a specific index be used, it would have said so.
For these reasons, plaintiff's motion for attorney's fees
under the EAJA is granted; however, plaintiff will be
compensated at an hourly rate of $100.37, which represents the
statutory rate of $75 per hour adjusted to reflect the
increased cost of living under the CPI for "All Items." I have
reviewed the hours of work claimed by ...