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Dewalt v. Sullivan

filed: April 24, 1992.


On Appeal from the United States District Court for the District of New Jersey. (Civil Action No. 83-1194)

Before: Becker And Hutchinson, Circuit Judges, and Fullam, Senior District Judge*fn*

Author: Fullam


FULLAM, Senior District Judge.

Plaintiff-appellee, Michelle Dewalt, established her entitlement to an award of counsel fees under the Equal Access to Justice Act, 28 U.S.C. § 2414, after an eight-year struggle to obtain SSI benefits under Title XVI of the Social Security Act. The district court awarded fees calculated at the rate of $136.02 per hour. The narrow but important issue presented on this appeal is whether that hourly rate exceeds the maximum permissible under the statute.

The relevant statute provides:

The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of 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 or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. 28 U.S.C. § 2412(d)(i)(A)

(emphasis added).

The question to be decided is which of several possible methods of determining "an increase in the cost of living" is appropriate for upward adjustment of the $75 per-hour statutory cap on attorney's fees.

Beginning in the World War I era, the Bureau of Labor Statistics has published a series of indexes of consumer prices based upon its collection of data through various sampling techniques. Regular publication of a national index began in 1921, under the general title "Cost of Living". In 1940, the name was changed to "Indexes of the Cost of Living of Wage-Earners and Lower-Salaried Workers in Large Cities", and in 1945, the name was changed to "Consumer Price Index Moderate Income Families in Large Cities". See B.L.S. Handbook of Methods, at p. 185. In 1978, the coverage was broadened to include all urban consumers, not just wage-earners. This CPI-U,or CPI-ALL as it is commonly referred to, takes into account the buying patterns of professional and salaried workers, part-time workers, the self-employed, the unemployed, and retired persons, as well as wage-earners and clerical workers, and reflects the purchasing habits of approximately 80% of the non-institutionalized population of the United States. See The Consumer Price Index: 1987 Revision, p. 1; B.L.S. Handbook of Methods, p. 154. At some risk of over-simplification, it can be stated that the CPI-ALL incorporates data covering several hundred categories of items, separated into 69 expenditure classes in 7 general categories of expenses: food and beverages, housing, apparel and upkeep, transportation, medical care, entertainment, and other goods and services.

Beginning in 1986, the "other goods and services" category was further refined to include a separate sub-category for personal services, including legal services. The all-items CPI indexes separately record price levels on a national basis, on regional bases, and for 29 local areas. But the legal services component is calculated only on a national basis.

If the statutory cap of $75 per hour had been adjusted upward, in the present case, on the basis of the CPI-ALL index for Southern New Jersey, the maximum rate would have been increased to $105.91 per hour, yielding a total award of $2,965.48. The district court determined, however, that the statutory maximum should be adjusted on the basis of the "personal services" component of the CPI, and on that basis awarded fees at the rate of $136.02 an hour, for a total of $3,308.56.*fn** Although the dollar amount in dispute in this case is not great, appellant, understandably, seeks a definitive ruling because of the aggregate impact of attorney's fee awards in other similar cases.


We review attorney's fee awards under the EAJA for abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 572 (1988). But the district court's interpretation and application of the statutory cap presents a question of law, as to which our review is plenary. Or, as it is sometimes expressed, an abuse of discretion occurs "when the trial court uses improper standards or procedures in determining fees, or if it does not ...

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