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 (1990);
Trichilo, 823 F.2d at 707. The report of the House Judiciary
Committee explained the problem the bill was intended to remedy
For many citizens, the costs of securing
vindication of their rights and the inability to
recover attorney fees preclude resort to the
adjudicatory process. When the cost of contesting
a Government order, for example, exceeds the
amount at stake, a party has no realistic choice
and no effective remedy. In these cases, it is
more practical to endure an injustice than to
H.Rep. No. 141.8, 96th Cong., 2d Sess. 9 (1980), reprinted in
1980 U.S.Code Cong. & Admin.News 4953, 4984, 4988. The record
of the congressional debates on the bill contains numerous
references to the
deterrent effect of legal costs on the ability of individuals
and businesses to challenge governmental regulations and
decisions. 126 Cong.Rec. 27,681, 28,106, 28,652-54, 28,846.
Senator Weicker expressed a typical sentiment when he stated
that passage of the bill was "of extreme importance to small
businesses, and others, that are deterred from bringing legal
actions against the United States or defending themselves in
actions brought against them by the United States, because of
the extreme cost involved in securing their rights in such
proceedings." Id., at 28,106.
The maximum hourly rate should be increased to take into
account the prevailing market rate for legal services in order
to counteract the deterrent effect of legal costs to the degree
Congress has deemed necessary. De Walt, 756 F. Supp. at 201; cf.
Baker v. Bowen, 839 F.2d at 1084. Congress determined that
hourly rates of up to $75 might be necessary to obtain adequate
legal services at the time the EAJA took effect. The "Personal
Expenses" and "Legal Services" indexes of the CPI indicate that
legal services that could have been purchased in 1981 for $75
an hour would now cost $147.47. To limit attorney fees to an
hourly rate of $115.50 by applying the "All Items" index of the
CPI would allow the relatively rapid increase in the cost of
legal services since 1981 to erode the level of protection
Congress provided to individuals and businesses aggrieved by
governmental action. In order to counteract the deterrent
effect of the cost of legal services to the same degree that
Congress deemed appropriate in 1981, a court should adjust the
maximum rate using the most accurate indicators of the increase
in the cost of legal services. Accordingly, I apply the
"Personal Expenses" index for the period from October, 1981
through November, 1986 and the "Legal Services" index from
December, 1986 onward. The resulting $147.47 hourly rate is
reasonable in light of the evidence plaintiff has submitted
regarding market rates and her counsel's extensive experience
in social security litigation.
Plaintiff is also entitled to attorney fees for her counsel's
preparation of the fee request. It is well-settled that fees
may be awarded for time spent litigating fee requests.
Commissioner, INS v. Jean, ___ U.S. ___, 110 S.Ct. 2316, 110
L.Ed.2d 134; Trichilo, 823 F.2d at 707. Plaintiff's request for
an hourly rate of $147.47 is based on a formula similar to
those approved in several other cases, which plaintiff has
cited. In addition, as noted above, on at least one occasion
the Secretary of the Department of Health and Human Services
has not objected to a rate based on the "Other Services"
category of the CPI. Ofray, 741 F. Supp. at 54. Thus,
defendant's contention that plaintiff's request for an hourly
rate of $147.47 unreasonably protracted these proceedings
borders on the frivolous.
Defendant is directed to pay $1,010.17 to Harlem Legal
Services, Inc. for the 6.85 hours plaintiff's counsel worked on
this matter while employed there and $3757.54 to the Federal
Litigation Clinic for the 25.48 hours plaintiff's counsel
worked on this matter since he has been employed there.
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