Harris v. Sullivan
| Decision Date | 30 June 1992 |
| Docket Number | D,No. 1625,1625 |
| Citation | 968 F.2d 263 |
| Parties | , Unempl.Ins.Rep. (CCH) P 16797A Annie HARRIS, Plaintiff-Appellee, v. Louis W. SULLIVAN, M.D., Defendant-Appellant. ocket 91-6273. |
| Court | U.S. Court of Appeals — Second Circuit |
Sapna V. Raj, Sp. Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Ping C. Moy, Asst. U.S. Atty., of counsel), for defendant-appellant.
David Stroh Buckel, New York City (Francis J. Clark, Chief Counsel, Harlem Legal Services, Inc., of counsel), for plaintiff-appellee.
Before: VAN GRAAFEILAND, KEARSE, Circuit Judges, and PIERRE N. LEVAL, District Judge. *
Louis W. Sullivan, Secretary of Health and Human Services, appeals from an order of the United States District Court for the Southern District of New York (Cedarbaum, J.) awarding Annie Harris, a successful social security litigant, $4,767.71 in attorney fees. The Secretary does not contest the award of fees, only the amount awarded, which, he maintains, was based upon an improper legal standard.
Subsections 2412(d)(1)(A) and 2412(d)(2)(A) (28 U.S.C. §§ 2412(d)(1)(A) and (d)(2)(A) (1988)) of the Equal Access to Justice Act ("EAJA") together allow a party who prevails in a civil suit brought by or against the United States to recover "reasonable attorney fees" when the position taken by the United States in that suit was not substantially justified. Subsection 2412(d)(2)(A), however, limits such fee recovery in the following manner:
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 ... justifies a higher fee.
The issue on which the parties differ is whether the phrase "cost of living", as used in subsection (d)(2)(A), is to be given its ordinary everyday meaning, or whether it should be interpreted to refer to personal expenses, more specifically, legal fees. The district court adopted the second interpretation. See 773 F.Supp. 612, 616. Concluding that this was error, we vacate and remand.
Subsection 2412(d) was enacted in 1980 as part of section 204(a) of the EAJA. See Pub.L. No. 96-481, 94 Stat. 2325, 2328-29. However, it was given only a limited existence, being scheduled for repeal on October 1, 1984. Id. § 204(c), 94 Stat. at 2329. In August of 1985, Congress annulled this sunset provision, stating that subsection (d) of section 2412 would be effective thereafter as if the subsection had not been repealed. Pub.L. No. 99-80, § 6(a), 99 Stat. 183, 186.
"A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). Because "cost of living" is not defined in the statute and has no established common law meaning, it should be given its common, ordinary meaning, i.e., "the cost of purchasing those goods and services which are included in an accepted standard level of consumption," Webster's Third New International Dictionary 515, or "the costs of food, shelter, clothing, and other basic goods and services needed in everyday life," Sullivan v. Sullivan, 958 F.2d 574, 576-77 (4th Cir.1992). From the time subsection 2412(d) first became effective on October 1, 1981, almost every court that has applied this subsection has held, albeit without debate on the specific issue, that "cost of living" has this ordinary meaning and is properly measured by the Consumer Price Index. See, e.g., Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 703 F.2d 700, 713 (3d Cir.1983); Action on Smoking and Health v. CAB, 724 F.2d 211, 218 (D.C.Cir.1984); Continental Web Press, Inc. v. NLRB, 767 F.2d 321, 323-24 (7th Cir.1985); Hirschey v. FERC, 777 F.2d 1, 5 (D.C.Cir.1985); Sierra Club v. Secretary of Army, 820 F.2d 513, 521-23 (1st Cir.1987); Allen v. Bowen, 821 F.2d 963, 967-68 (3d Cir.1987); Wilkett v. ICC, 844 F.2d 867, 875 (D.C.Cir.1988); Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir.1991).
This court, also without debate directed to the specific issue, has adopted the same reasonable interpretation. In Trichillo v. Secretary of Health and Human Services, 647 F.Supp. 125 (N.D.N.Y.1986), Chief Judge Munson of the Northern District applied the 17.4 percent general cost of living increase from October 1981 to August 1986. Id. at 127. We affirmed the full amount awarded at the rate of $75 plus a 17.4 percent cost of living increase, i.e., $88 per hour. 823 F.2d 702, 708 (2d Cir.1987). In so doing, we stated that when Congress re-enacted section 2412(d) in 1985, it can be presumed to have had knowledge of the interpretation given that section prior to its repeal. Id. at 706. See also Sierra Club, supra, 820 F.2d at 521-23, where the court approved a similar 17.8 percent increase based upon the Consumer Price Index and also found significance in the 1985 re-enactment of the statute without change.
The long time acceptance of a reasonable statutory...
To continue reading
Request your trial
-
Owino v. Corecivic, Inc., Case No.: 17-CV-1112 JLS (NLS)
...United States v. Marcus, 628 F.3d 36, 44 (2d Cir. 2010) (citing Smith v. United States, 508 U.S. 223, 228 (1993); Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992)). "Webster's Third New International Dictionary (1993) defines 'labor' as 'expenditure of physical or mental effort esp. whe......
-
Riverkeeper, Inc. v. U.S. E.P.A.
...capacity." While we agree that words in a statute are to be accorded "their ordinary, contemporary, common meaning," Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir.1992), it is clear that the EPA's interpretation of the statute does not deviate from this requirement. See, e.g., Black's Law D......
-
Luessenhop v. Clinton County, N.Y.
...courts have weighed the cost of living factor. See Kevin v. United States Postal Serv., 218 F.3d 185 (2d Cir.2000); Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir.1992) (a social security disability case wherein the Second Circuit determined that the cost of living should be given its ordina......
-
Kane ex rel. United States v. Healthfirst, Inc.
...the term "identified," the Court must consider its "ordinary, common-sense meaning." Dauray, 215 F.3d at 260 (citing Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir.1992) ).Dictionary definitions of the word "identify"14 do not resolve the question, suggesting instead that it is susceptible t......
-
Attorney's Fees
...issue. See Sullivan v. Sullivan, 958 F.2d 574 (4th Cir. 1992), Dewalt v. Sullivan, 963 F.2d 27 (3d Cir. 1992), and Harris v. Sullivan, 968 F.2d 263 (2d Cir. 1992). When courts award an hourly rate greater than the statutory maximum because of inflation, they generally use the consumer price......
-
Attorney's Fees
...issue. See Sullivan v. Sullivan, 958 F.2d 574 (4th Cir. 1992), Dewalt v. Sullivan, 963 F.2d 27 (3d Cir. 1992), and Harris v. Sullivan, 968 F.2d 263 (2d Cir. 1992). When courts award an hourly rate greater than the statutory maximum because of inflation, they generally use the consumer price......
-
Attorney's Fees
...issue. See Sullivan v. Sullivan, 958 F.2d 574 (4th Cir. 1992), Dewalt v. Sullivan, 963 F.2d 27 (3d Cir. 1992), and Harris v. Sullivan, 968 F.2d 263 (2d Cir. 1992). When courts award an hourly rate greater than the statutory maximum because of inflation, they generally use the consumer price......
-
Attorney's fees
...issue. See Sullivan v. Sullivan, 958 F.2d 574 (4th Cir. 1992), Dewalt v. Sullivan, 963 F.2d 27 (3d Cir. 1992), and Harris v. Sullivan, 968 F.2d 263 (2d Cir. 1992). ATTORNEY’S FEES 7-65 Attorney’s Fees §766 When courts award an hourly rate greater than the statutory maximum because of inflat......