The opinion of the court was delivered by: Cedarbaum, District Judge.
Plaintiff sued pursuant to 42 U.S.C. § 405(g), 1383(c)(3)
for review of defendant's denial of disability benefits under
Title XVI of the Social Security Act, 42 U.S.C. § 1381-1385.
The parties stipulated that plaintiff is entitled to the
benefits denied her, and on February 20, 1991, an order to pay
those benefits was entered. Plaintiff now moves for attorney
fees pursuant to the Equal Access to Justice Act (the "EAJA"),
28 U.S.C. § 2412. Defendant concedes that plaintiff is entitled
to attorney fees, but challenges the hourly rate plaintiff
seeks as unreasonable and contests plaintiff's request for fees
for the preparation of the fee request on the ground that
plaintiff's request for an exorbitant hourly rate unreasonably
protracted these proceedings, 28 U.S.C. § 2412(d)(2)(D). After
reviewing the language and legislative history of the EAJA, I
conclude that plaintiff is entitled to attorney fees at the
rate she proposes and for her attorney's preparation of the
motion for fees.
The EAJA provides that an award of reasonable attorney fees
"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 . . . justifies a higher fee." 28 U.S.C.A. §
The Second Circuit has held that cost-of-living adjustments
of the $75 maximum hourly rate should be calculated from
October 1, 1981, the effective date of the EAJA. Trichilo v.
Secretary of Health and Human Services, 823 F.2d 702 (2d Cir.
1987). The Second Circuit has also approved the use of the
Consumer Price Index ("CPI") to measure increases in the cost
of living, Id., but it has not addressed whether any particular
category of that index is more appropriate than others. Ofray
v. Secretary of Health and Human Services, 741 F. Supp. 53, 54
The CPI tracks increases in the cost of selected goods and
services. It also measures
increases in weighted averages of the cost of certain
combinations of goods and services, including a weighted
average of the cost of all the goods and services listed in the
CPI. The average of all the goods and services is called "All
Items." "All Items" is broken down into seven subcategories:
"Food and Beverages," "Housing," "Apparel and Upkeep,"
"Transportation," "Medical Care," "Entertainment," and "Other
Goods and Services." "Other Goods and Services" is further
subdivided into several categories, one of which is "Personal
Expenses." "Personal Expenses" includes legal services. Before
December, 1986, there was no separate index for legal services
alone. The cost of legal services was a component of the
weighted "Personal Expenses" average. Since December, 1986, the
CPI has established a separate category for legal services.
The parties agree that the maximum hourly attorney fee of $75
should be increased to reflect the increase in the cost of
living since 1981, but they disagree about which category of
the CPI should be used to make the adjustment. Defendant argues
that the "All Items" category should be used, not because it
accurately reflects the cost of legal services, but because the
reference in § 2412 to the "cost of living" indicates that
"Congress had in mind increases in the overall cost-of-living."
Defendant's Memorandum of Law, p. 5. Using the "All Items"
index would result in a maximum hourly rate of $115.50.
Plaintiff argues that the cost of legal services is the most
relevant component of the cost of living and suggests the use
of the "Legal Services" category from December, 1986 through
1991 and the "Personal Expenses" category for the period from
October, 1981 through December, 1986. Defendant does not
dispute that these indexes reflect the increase in the cost of
legal services more accurately than the "All Items" index.
Using these indexes produces a maximum hourly rate of $150.26
if monthly figures are employed and $147.47 if annual figures
are used. Plaintiff requests an award of attorney fees at an
hourly rate of $147.47.
The cases cited by the parties provide some useful
background, but none is controlling. In most cases where the
$75 maximum rate has been adjusted to account for the cost of
living, the parties have not disputed the application of a
particular category of the CPI, and the court has not discussed
alternative categories. In some of these cases, the "All Items"
index has been used. See, e.g., Ramon-Sepulveda v. INS,
863 F.2d 1458, 1463 (9th Cir. 1988); Dabone v. Thornburgh,
734 F. Supp. 195, 204 (E.D.Pa. 1990). In Davie v. Sullivan, No.
Civ-88-1361T, 1990 WL 274630 (W.D.N.Y. February 9, 1990), the
court used the "Other Services" category to calculate an hourly
rate, apparently because the Secretary of the Department of
Health and Human Services did not object. Ofray, 741 F. Supp. at
The few courts that have been presented with a dispute
between parties arguing for the application of different
categories of the CPI have reached different results, although
a greater number have applied the "All Items" index. In
Ofray v. Secretary of Health and Human Services, the court
adopted the argument advanced by defendant here that the "All
Items" index is more appropriate than either the "Other
Services" or "Personal and Educational Services" indexes
because "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." 741 F. Supp. at 54. The court also stated that the
legislative history revealed "nothing to suggest that Congress
intended that any particular index be used." Id., at 54-55. In
Torres v. Sullivan, Civil No. B-86-431, 1990 WL 265953 (D.Conn.
filed January 9, 1990), an opinion of the magistrate judge
stated, without citing any cases, that courts have consistently
employed the "All Items" index in adjusting the $75 maximum
rate. The magistrate judge applied that index because the
plaintiff "offered no compelling reason to deviate from that
practice. . . ." Id., slip op. at 3. Defendant also cites Shaw
v. Sullivan, Civil No. N-84-648 (D.Conn. filed March 6, 1990),
in which the court chose the "All Items" index
over "Personal Expenses" although without any discussion of the
legislative history of the EAJA.
In contrast, a number of courts have held that other
categories of the CPI should be applied rather than the "All
Items" index. The court in Malick v. Heckler, 1989 WL 831, 1989
U.S.Dist. LEXIS 68, Civil No. 85-4946 (E.D.Pa. filed January 9,
1989), held that using the "Services" category is "more
accurate" than using "All Items." The court did not elaborate
on this conclusion. In De Walt v. Sullivan, 756 F. Supp. 195
(D.N.J. 1991) after reviewing the legislative history and the
case law, including Ofray, Torres, and Malick, the court
applied the "Other Services" index for the period up to
December, 1986 and the "Legal Services" index thereafter. The
court reasoned that the EAJA is concerned specifically with the
cost of legal representation, not the general cost of living.
Id., at 201. Because the cost of legal services may increase
more or less than the overall cost of living, "[a]pproving the
`Legal Services' category protects a plaintiff's ability to
obtain legal representation on par with the legal
representation that could have been obtained in 1981 for $75
per hour." Id. Plaintiff relies principally on De Walt.
The one court of appeals that has discussed this issue
remanded to the district court the determination of the
appropriate increase in the maximum rate. Baker v. Bowen,
839 F.2d 1075 (5th Cir. 1988). In Baker, the Fifth Circuit stated
its views on the appropriate maximum rate:
[R]ates 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. At that time, Congress believed $75 was a
sufficient rate for awards under the Act. By
permitting cost-of-living increases, Congress
intended to provide attorneys at most with an
hourly rate in present-day dollars commensurate
with seventy-five dollars in 1981, but no more.
Id., at 1084. Although the Fifth Circuit declined to provide a
formula for adjusting the maximum rate, it recognized that the
maximum rate may be increased by the percentage by which the
prevailing market rate increased.
The language of the statute supports plaintiff's position
that the maximum hourly rate should be increased to reflect the
increase in legal fees, not the cost of living generally.
Section 2412 provides that, as a general matter, an award of
attorney fees "shall be based upon prevailing market rates for
the kind and quality of the services furnished. . . ." 28
U.S.C.A. § 2412(d)(2)(A). The limit on the hourly rate must be
read together with this general rule. Thus, if the court
"determines that an increase in the cost of living . . .
justifies a higher fee," Id., the $75 maximum should be
increased in proportion with prevailing market rates.
The legislative history of the EAJA also shows that Congress
was concerned with the cost of legal services, not the overall
cost of living. De Walt, 756 F. Supp. at 200-01. The
congressional debates and reports on the bill that became the
EAJA demonstrate Congress's concern about the deterrent effect,
of legal fees on the ability and willingness of individuals and
small businesses to challenge arbitrary or unjustified
governmental action. Commissioner, INS v. Jean, ___ U.S. ___,
___, 110 S.Ct. 2316, 2321-23, 110 L.Ed.2d 134, 145-46 ...