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BIELEC v. BOWEN

December 14, 1987

John J. Bielec, Jr., Plaintiff,
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: GERRY

 This is a motion by plaintiff, John J. Bielec, Jr., for an award of counsel fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Plaintiff contends that such an award is appropriate because the Secretary's opposition to his ultimately successful Social Security appeal was not "substantially justified." Further, plaintiff argues that his attorney's fees should be fixed above the $ 75.00 per hour limit set by the statute, 28 U.S.C. § 2412(d)(2)(A), both to reflect a cost of living increase and in recognition of "the limited availability of qualified attorneys" for pursuing Social Security appeals to the Federal appellate level. Id.

 Defendant, in opposition to the instant motion, does not dispute that he lacked substantial justification for opposing plaintiff's claim of Social Security disability benefits, and that a counsel fee award is thereby warranted. The Secretary takes issue, however, with plaintiff's proposed fee enhancement beyond the $ 75.00 statutory cap.

 FACTUAL BACKGROUND

 Bielec commenced the underlying action by filing an application for disability insurance benefits on April 23, 1980. His application was twice denied, and a subsequent hearing before an Administrative Law Judge ("ALJ") on February 3, 1981 resulted in a finding that Bielec did not suffer from a qualifying disability. This adverse finding became the final Order of the Secretary when it was approved by the Appeals Council on September 23, 1981.

 Plaintiff filed a timely complaint with this court, seeking review of the Secretary's Order. By letter Opinion and Order filed January 21, 1983, this court remanded the case to the Secretary for explanation as to why seemingly probative evidence on disability had been rejected. On December 27, 1983, the ALJ issued a supplemental decision, again recommending that Bielec be found not disabled, on the basis of additional medical evidence and upon a finding that Bielec's condition was remediable. This supplemental recommendation became the final Order of the Secretary when it was adopted by the Appeals Council on April 4, 1984.

 Plaintiff reopened his civil action in this court for review of the supplemental administrative decision. On October 29, 1984, this court affirmed that decision. At this juncture, plaintiff's attorney, Jay F. Levin, contacted Richard E. Yaskin, Esq., about the possibility of pursuing an appeal of Bielec's case to the United States Court of Appeals for the Third Circuit. Yaskin became successor counsel for plaintiff and filed a timely notice of appeal to the Third Circuit on November 26, 1984. On July 24, 1985, the Third Circuit reversed the decision of this court and remanded with instructions to remand to the Secretary. On remand proceedings, the ALJ recommended that plaintiff's disability be established effective March 7, 1979. The recommendation was adopted as the final Order of the Secretary, and a Consent Order, filed April 23, 1987, dismissed the civil action as moot.

 On May 22, 1987, plaintiff filed the instant EAJA application with this court. The application seeks fees of $ 90.00 per hour for 22 hours expended by attorney Levin in trying plaintiff's case before this court and $ 95.00 per hour for 79 hours expended by attorney Yaskin in litigating the Third Circuit appeal and in making the fee application. The application also requests $ 278.42 in costs sustained in the Third Circuit appeal.

 LEGAL ANALYSIS

 As noted above, the Secretary does not contest plaintiff's claim that an award of attorney's fees is justified. The only issue here is the appropriate hourly rate. Section 2412(d)(2)(A)(ii) of the EAJA provides:

 
attorney fees shall not be awarded in excess of $ 75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.

 Plaintiff asserts that an increase to $ 90.00 per hour is appropriate for attorneys Levin and Yaskin to compensate for the increased cost of living from 1981, the date the EAJA became effective, to 1986, the date Bielec's benefits were finally established by the Secretary. Additionally, plaintiff seeks an additional $ 5.00 per hour for attorney Yaskin, to reflect the fact that there are a limited number of attorneys able to engage in Social Security benefits work at the Federal appellate level.

 The Secretary counters by first arguing that any cost of living increase, if at all justified, must be calculated from 1985, when Congress reenacted the EAJA, and not 1981. This issue, essentially one of statutory interpretation, has recently been settled in this Circuit. In Allen v. Bowen, 821 F.2d 963 (3d Cir. 1987), the Court of Appeals elected to "join those courts which have read [the EAJA reenactment] as intending to have the cost of living adjustment to the $ 75.00 an hour rate measured from 1981." 821 F.2d at 967. As the Court in Allen re-emphasized, this Circuit has expressly approved the Consumer Price Index ("CPI") for use in calculating cost of living adjustments under the EAJA. Id. at 967-68, citing Natural Resources Defense Council v. Environmental Protection Agency, 703 F.2d 700, 713 (3d Cir. 1983). Therefore, plaintiff's calculations from the CPI, which reveal an inflation ratio of 1.2037 from 1981 through June 1986, should be applied to the $ 75.00 statutory rate to insure that plaintiff's justifiable attorneys fees are not diminished by the force of inflation. Accordingly, plaintiff's request for a $ 90.00 hourly rate for attorneys Levin and Yaskin will be granted.

 The more thorny issue this motion presents is whether the plaintiff deserves an additional $ 5.00 per hour for the services of Attorney Yaskin. Plaintiff avers, by several affidavits, that the fee enhancement is necessary here because there are few attorneys in this region with the requisite wherewithal and expertise to pursue a denial of Social Security benefits to the level of federal appellate review. The Secretary argues that plaintiff has failed to adequately prove that such a lack of lawyers exists, and submits a relatively lengthy list of attorneys engaged in Social Security law work, ...


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