Harris v. Sullivan, 87 Civ. 4376 (MGC).

• Decision Date: 04 September 1991
• Docket Number: No. 87 Civ. 4376 (MGC).,87 Civ. 4376 (MGC).
• Citation: 773 F. Supp. 612
• Parties: Annie Bernice HARRIS, Plaintiff, v. Louis SULLIVAN, in his Official Capacity as Secretary of the United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

773 F. Supp. 612

Annie Bernice HARRIS, Plaintiff, v. Louis SULLIVAN, in his Official Capacity as Secretary of the United States Department of Health and Human Services, Defendant.

No. 87 Civ. 4376 (MGC).

United States District Court, S.D. New York.

September 4, 1991.

Federal Litigation Clinic, New York City by David Stroh Buckel, for plaintiff.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City by Sapna V. Raj, for defendant.

OPINION AND ORDER

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. § 2412(d)(2)(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 (W.D.N.Y.1990).

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 54.

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, "approving 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:

Rates 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...