Washington v. Barnhart , 93 F. App'x 630 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20699
Summary Calendar
THERESA WASHINGTON,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-1928
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Theresa Washington appeals from the district court’s partial
grant of attorneys’ fees to her pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412. Washington initially
sought a fee award for 58.75 hours of attorney services at the
increased rate of $143.75 per hour, which she amended on appeal
to $138.75 per hour, arguing that the hourly fee should be
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-20699
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adjusted above the statutory rate of $125 per hour because of an
increase in the cost of living in the Houston area.
The district court found Washington’s request for fees
meritorious in part but awarded her compensation only at the
statutory rate of $125 per hour. The district court found that
the issues presented in the case were not novel or time consuming
and that the work performed did not require a level of skill and
experience that necessitated an adjustment of the $125.00
statutory cap for EAJA attorneys’ fees awards.
We review a district court’s attorneys’ fees award under the
EAJA only for abuse of discretion. See Baker v. Bowen, 839 F.2d
1075, 1082 (5th Cir. 1988). We have explained that “while the
statute clearly allows an adjustment for changes in the cost of
living, it does not absolutely require it.” Id. at 1084. We
have further stated that, except in unusual circumstances, if
there has been a significant increase in the cost of living that
would justify an increase in the fee, the increase should be
granted even though the ultimate award need not track the cost-
of-living index. Id. In Hall v. Shalala, 50 F.3d 367, 370 (5th
Cir. 1995), we held that a district court did not abuse its
discretion by recognizing that the statutory hourly cap should be
increased due to inflation but declining to award an hourly fee
above the statutory cap based upon other factors present in that
case.
No. 03-20699
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Here, the special factors that the district court considered
as necessary to justify a rate increase – the presence of novel
or time-consuming issues, or the need for an unusual level of
legal expertise – are not special factors that may be used to
determine whether the EAJA rate should be increased over the
statutory cap. See Pierce v. Underwood, 487 U.S. 552, 573
(1988). Moreover, unlike the Hall case, there is no indication
that the district court considered Washington’s argument that the
hourly rate should be adjusted because of an increase in the cost
of living.
Therefore, we vacate the district court’s attorneys’ fees
award and remand for the district court to consider whether an
increase in the cost of living justifies an increase in the
statutory maximum hourly rate and whether the fee award here
should be increased in light of any cost of living adjustment.
Further, we have previously instructed the district judges
in the Northern District of Texas and the Eastern District of
Louisiana to address any inconsistencies in cost of living
adjustments within their districts. See Baker, 839 F.2d at 1085;
Hall, 50 F.3d at 370. The district court here should also be
cognizant of the need for uniformity in these types of cases.
In addition, on remand, any award of fees based on a cost of
living increase should be calculated “to reflect the appropriate
rate in the year in which the services were rendered." Perales
v. Casillas, 950 F.2d 1066, 1076 (5th Cir. 1992).
No. 03-20699
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Finally, Washington contends that she is entitled to
additional fees for counsel’s 7.4 hours of supplemental time
expended in the district court defending her EAJA petition. Such
an award is permitted under the EAJA. See Commissioner, INS v.
Jean, 496 U.S. 154, 162-63 (1990). The district court should
consider Washington’s request on remand in connection with its
determination of the request for an increased hourly rate. See
id. at 163 n.10.
VACATED and REMANDED.