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No. 07-547

 

In the Supreme Court of the United States

OSCAR LOPEZ, PETITIONER

v.

MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
MICHAEL JAY SINGER
MICHAEL E. ROBINSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

 

 

QUESTION PRESENTED

Whether the court of appeals correctly concluded that the district court did not abuse its discretion under the Equal Access to Justice Act, 28 U.S.C. 2412(d), in awarding an attorney's fee of $140 per hour based on the cost of living in Abilene, Texas, instead of a higher rate based on the national Consumer Price Index for All Urban Consumers.

 

In the Supreme Court of the United States

No. 07-547

OSCAR LOPEZ, PETITIONER

v.

MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A2) is not published in the Federal Reporter but is reprinted in 236 Fed. Appx. 106. The opinion of the district court (Pet. App. B1-B3) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 24, 2007. The petition for a writ of certiorari was filed on October 22, 2007 (Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner sued the Commissioner of Social Secu rity (Commissioner) in the Abilene Division of the United States District Court for the Northern District of Texas. He won a remand in his action for disability benefits, and subsequently filed an application for attor ney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412(d). Pet. App. D1. EAJA autho rizes a court to award "fees and other expenses" to a party who prevails in litigation against the United States. 28 U.S.C. 2412(d)(1)(A). The statute defines "fees and other expenses" to include, inter alia, "rea sonable attorney fees." 28 U.S.C. 2412(d)(2)(A).

The statute further prescribes two criteria for deter mining the reasonableness of attorney's fees. First, all fees must be "based upon prevailing market rates for the kind and quality of the services furnished." 28 U.S.C. 2412(d)(2)(A). Second, "attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a spe cial factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. 2412(d)(2)(A)(ii).

In his motion, petitioner sought attorney's fees at a rate of $156.25 per hour. Pet. App. D2. Although that rate exceeded EAJA's statutory cap of $125 per hour, he asserted that the higher rate should be awarded to re flect an increase in the national cost of living since EAJA's reenactment in 1996. Id. at D3. Petitioner sought to recover at this rate for 59.6 hours of attorney time, plus additional court costs of $250, which would have totaled $9562.50. See id. at D6, D8. The Commis sioner did not dispute petitioner's entitlement to fees and costs, but objected to the amount. Id. at D2.

2. The magistrate judge approved an hourly rate of $140. The court agreed that the rise in the cost of living since 1996 justified an hourly rate above the $125 statu tory maximum; justified a higher rate than the court had previously awarded; and indeed, might even justify a rate above $140, even in the Abilene and San Angelo Divisions where the magistrate judge sits. Pet. App. D5-D6. The court further recognized that the Fifth Cir cuit had held in Baker v. Bowen, 839 F.2d 1075 (1988), that cost-of-living adjustments to EAJA's cap should be uniform within the Dallas Division of the Northern Dis trict of Texas. Pet. App. D4. The court explained, how ever, that Baker did not require uniform cost-of-living adjustments throughout the Northern District of Texas. Ibid. (The Northern District comprises seven divisions and 100 counties, extending from the Panhandle coun ties bordering Oklahoma to Crockett County, a few miles from the Mexican border. See 28 U.S.C. 124(a) (delineating the Northern District). Instead, the court exercised its discretion to select a "reasonable" rate that was sufficient "to ensure an adequate source of repre sentation in this court." Pet. App. D4, D5. That rate was $140 per hour. Id. at D5-D6. The court held that petitioner could recover at that rate for 59.45 hours of attorney time, plus court costs, for a total award of $8573.00. Id. at D10. Applying the lower rate reduced petitioner's award by about $966.

3. Petitioner sought reconsideration, arguing for the application of a uniform cost-of-living standard. Pet. App. C2. The magistrate judge again declined, noting that the Fifth Circuit had recently rejected the notion of "rate uniformity across the entire federal district" and affirmed an award of $132.50 per hour (lower than the going rate in Dallas) in a case from the San Angelo Divi sion. Ibid. (quoting Yoes v. Barnhart, 467 F.3d 426, 427 (5th Cir. 2006) (per curiam)). And the court reiterated that its award of $140 per hour in this case was sup ported by the court's own knowledge of the appropriate rate in the Abilene Division. Id. at C3.

4. The district court affirmed the magistrate judge's award and overruled petitioner's objection that "the appropriate hourly fee is the same fee applicable to the Dallas Division." Pet. App. B2. The district judge (who had also issued the fee award affirmed in Yoes) reiter ated that the magistrate judge's award was reasonable, adequate, and consistent with the applicable law. Id. at B2-B3 & n.1.

5. The Fifth Circuit affirmed in an unpublished, per curiam disposition. The court of appeals rejected the argument that EAJA requires cost-of-living increases to be uniform nationally and confirmed that "rate unifor mity is not required even across a single district," be cause "'[r]ate disparit[y] between courts serving two different markets is more than reasonable.'" Pet. App. A2 (quoting Yoes, 467 F.3d at 427). Reviewing for abuse of discretion, the court of appeals held that $140 per hour "adequately provide[d] for representation in Abi lene." Ibid.

ARGUMENT

The court of appeals correctly concluded that the district court did not abuse its discretion by awarding attorney's fees at a locally appropriate rate of $140 per hour-an amount in excess of the presumptive statutory maximum of $125 per hour-rather than at a higher rate based on a particular index of the national cost of living. The Fifth Circuit's unpublished decision does not con flict with that of any other court of appeals. No federal appellate court has held that EAJA requires the use of petitioner's preferred economic statistics. Further re view is not warranted.

1. Petitioner commits a threshold error by assuming that the amount of the fee award in this case turns only on the cost-of-living adjustment to EAJA's maximum hourly rate. The magistrate judge acknowledged that "the rise in the cost of living may justify an adjustment to the statutory attorney's fee cap above $140.00 per hour." Pet. App. D6 (emphasis added). But the magis trate judge found, and the district court agreed, that securing effective representation in the Abilene and San Angelo Divisions does not require paying the full amount of the inflation-adjusted cap. The amount of the cap is completely irrelevant when the "prevail- ing market rates for the kind and quality of the services furnished" are below the (adjusted) cap. 28 U.S.C. 2412(d)(2)(A). That is the case here: the magistrate judge adjusted the cap upward to account for the cost of living, but used his discretion to "determine that a fee based on a rate below the adjusted statutory cap 'is * * * reasonable.'" Pet. App. D5 (quoting Hall v. Shalala, 50 F.3d 367, 370 (5th Cir. 1995)).

The court of appeals properly affirmed that exercise of discretion. Petitioner asserts (Pet. 10) that the dis trict court offered an inadequate "fact-based rationale" and that the "cost-of-living evidence in the record" does not support the fee award. These fact-bound conten tions are incorrect and, in any event, do not warrant this Court's review.

2. Even if the question framed by the petition were properly presented, EAJA does not mandate the appli cation of the same cost-of-living measurement in every division and every case and, instead, grants district courts discretion to make cost-of-living adjustments based on local factors. Petitioner asserts (Pet. 6-7) that EAJA's "plain meaning" requires courts to employ one particular nationwide measure of the cost of living, the national Consumer Price Index for All Urban Consum ers (CPI-U). That is incorrect. EAJA merely permits "the court" to determine whether "an increase in the cost of living * * * justifies a higher fee" in a particu lar case. 28 U.S.C. 2412(d)(2)(A)(ii). Nor is there any suggestion in EAJA's legislative history that cost of liv ing must be measured in only one way. See generally H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980); S. Rep. No. 974, 96th Cong., 2d Sess. (1980); H.R. Conf. Rep. No. 1434, 96th Cong., 2d Sess. (1980).

The Fifth Circuit's approach is entirely compatible with the statute's plain meaning. The court of appeals has directed that "[e]xcept in unusual circumstances, * * * if there is a significant difference in the cost of living since [EAJA's enactment] in a particular locale that would justify an increase in the fee, then an in crease should be granted." Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988). And here the district court followed Baker and granted an attorney's fee higher than the statutory cap of $125 per hour, based in part on the increased cost of living. Pet. App. D4-D6. The Fifth Circuit and the district court have merely recognized that the cost of living often increases at different rates in different areas, and that the bar of Abilene is not in variably entitled to receive higher rates because of an increase in the price of goods in Dallas, or Detroit.

That approach is also consistent with the structure and purpose of EAJA. Indeed, the statute requires the court to make other fee determinations based on local (not national) conditions, including the "prevailing mar ket rates for the kind and quality of the services fur nished." 28 U.S.C. 2412(d)(2)(A). That local approach accords with this Court's treatment of fee awards under 42 U.S.C. 1988, under which a reasonable attorney's fee is "calculated according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984) (emphasis added).

3. Petitioner argues (Pet. 8-11) that the court of ap peals' approach is incompatible with EAJA, as inter preted by this Court in Commissioner, INS v. Jean, 496 U.S. 154 (1990). According to petitioner, Jean stands for the proposition that EAJA's only "true purpose" is to encourage and enable parties to bring lawsuits against the government to challenge policies, regulations, or rulings, without regard to safeguarding the public fisc. This contention is both irrelevant and mistaken.

First, petitioner ascribes unjustified significance to the court of appeals' reference in Baker to the dual pur poses of EAJA and its fee limitation. See 839 F.2d at 1093. In Baker the court of appeals simply held that although Congress has imposed a general cap on fee awards (to protect the public fisc), increases in the cost of living are one proper basis for awarding fees that ex ceed that cap. Ibid. And the court of appeals went on to award fees above the EAJA cap, just as in this case.

Second, in Jean the "narrow" issue before the Court was whether the plaintiff was entitled to a fee award at all for his attorney's work preparing fee applications, not what the maximum amount of such a "fees for fees" award would be. 496 U.S. at 154, 156 (explaining that the question presented "affect[ed] only [a claimant's] eligibility for compensation for services rendered for fee litigation rather than the amount that may be appro priately awarded for such services") (emphases added). To the very limited extent Jean addressed the size of awards, it simply emphasized that "a district court will always retain substantial discretion in fixing the amount of an EAJA award." Id. at 163.

Accordingly, the Fifth Circuit's brief reference in Baker to EAJA's purposes creates no conflict with Jean or any other decision of this Court.

4. Petitioner asserts that the court of appeals' deci sion warrants review because it is in "direct conflict" with approaches taken by the Third, Fourth, Eighth, and Ninth Circuits. Pet. 12.1 That is incorrect. No court of appeals has held that EAJA requires reference to national inflation data; indeed, one of the decisions that petitioner cites actually relied on local cost-of-living statistics. See Dewalt v. Sullivan, 963 F.2d 27, 28, 30 (3d Cir. 1992). The other cases cited by petitioner at most support the notion that the national CPI-U figure may be a permissible measurement of the cost of living; none of them supports the proposition that a district court abuses its discretion under EAJA by not employ ing the CPI-U, as petitioner argues. Petitioner there fore fails to identify any disagreement between courts of appeals that calls for this Court's review.

a. Three of the cases upon which petitioner relies addressed questions unrelated to whether EAJA per mits or requires reference to local or national inflation statistics. In Dewalt, the question was whether "cost of living" could permissibly be measured according to a sub-index of the CPI-U that measures only the national average change in the cost of "personal services," in cluding legal services. See 963 F.2d at 27-28; see also id. at 29 ("The narrow issue presented is whether the stat ute permitted the district court to calculate the 'cost of living' increase solely on the basis of the personal-ser vices component of the consumer price index."). The government argued that the statutory term "cost of liv ing" does not mean "cost of legal services," and pro posed as an alternative measure the local CPI-U index for southern New Jersey (i.e., not the national average that petitioner urges). See id. at 30. The Third Circuit agreed that the "[CPI-U] index, rather than the person al-services component of that index, provides an appro priate measure of [general] inflation." Id. at 30 (empha ses added).2 And the court applied not the national CPI- U, but the local CPI-U for southern New Jersey. See id. at 28, 30.

The Third Circuit expressly agreed with the Fourth Circuit's resolution of a similar question. See Dewalt, 963 F.2d at 30. In Sullivan v. Sullivan, 958 F.2d 574 (4th Cir. 1992), the district court had used the "personal expenses" subcategory of the CPI-U to increase the EAJA cap. Id. at 575. "The sole issue on appeal [was] whether the district court abused its discretion in using the 'personal expenses' subcategory" as a measurement of "cost of living." Id. at 576. Looking to the text and structure of EAJA, and citing with approval the Fifth Circuit's decision in Baker, the Fourth Circuit held that the "personal expenses" subcategory was not a permissi ble measurement of the "cost of living" for EAJA pur poses. See id. at 576-578. The court did not consider whether a national index must be used, as petitioner here would have it, or whether a local measure of infla tion is permissible or even preferable.

Petitioner also quotes (Pet. 14) a single sentence from the Ninth Circuit's decision in Thangaraja v. Gon zales, 428 F.3d 870 (2005). That case, too, is inapposite, because it neither addressed nor decided whether EAJA permits or requires the use of a local or national infla tion figure. First, the Ninth Circuit was awarding fees under EAJA in the first instance, not reviewing a dis trict court's exercise of discretion to award fees. The court's statement that cost-of-living adjustments using the CPI-U are "[a]ppropriate" certainly does not pur port to set the boundaries of permissible discretion. Second, Thangaraja relied for this proposition on an earlier case, Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001), in which the court of appeals had held that if the CPI-U is used to measure the cost of living, then the court must use the figures for the year in which legal work is actually performed. Id. at 1148-1149.3 In nei ther Thangaraja nor Sorenson did the court of appeals address or analyze whether a national or local measure of inflation was required or even preferable under EAJA. Accordingly, neither case's holding is in conflict with the Fifth Circuit's approach in this case. Cf. Sorenson, 239 F.3d at 1149 (noting that "unstated as sumptions on non-litigated issues are not precedential holdings binding future decisions") (quoting Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985), cert. denied, 475 U.S. 1081 (1986)).

b. Petitioner also relies on another decision that, as he admits, did not "endorse[] the CPI-U specifically." Pet. 13. In Johnson v. Sullivan, 919 F.2d 503 (1990), the Eighth Circuit considered a district court's refusal to grant any cost-of-living adjustment to the EAJA cap. The court of appeals held that the district court should have granted an adjustment, because Congress intended for the federal courts to take into account the cost of living in setting EAJA awards, as well as "any circum stances that would render a cost-of-living increase un just or improper" in a particular case. Id. at 505.

The amount of the adjustment was not controverted in Johnson. The government "d[id] not dispute the in crease in the cost of living or the method used to prove it." 919 F.2d at 504.4 The court of appeals did observe that "[u]nder ordinary circumstances * * * the cost of living affects each litigant within a judicial district to the same degree," id. at 505; the appellants had noted that their counsel had received a cost-of-living adjustment for similar work from another district judge in the same judicial district, id. at 504.5 The court of appeals closed with the observation that "[p]roper proof of an increase in that cost of living [i.e., the cost of living within a judi cial district] should result in consistent hourly fee awards in each case, rather than producing disparate fee awards from each court within the district or from dif ferent districts within this circuit." Id. at 505. Peti tioner relies heavily on the brief reference to consis tency between districts, but the court's observation was at most dictum. Johnson did not present, and the court of appeals did not endorse, petitioner's argument that EAJA requires a nationally uniform cost-of-living stan dard, or that a district court necessarily abuses its dis cretion by applying a cost-of-living adjustment that re flects the actual conditions in the division where a case is litigated.

At most, there is tension between the Fifth and Eighth Circuits on a question petitioner does not pres ent: whether cost-of-living adjustments must be uni form within each judicial district. The Fifth Circuit requires that cost-of-living adjustments generally be uniform within each division, Yoes v. Barnhart, 467 F.3d 426, 427 (5th Cir. 2006), while the Eighth Circuit's opinion in Johnson seems to endorse uniformity within each judicial district-at least to the extent that "the cost of living affects each litigant within a judicial dis trict to the same degree," 919 F.2d at 505. Petitioner argues instead for a national cost-of-living measure ment, which neither court of appeals has adopted.

There is no circuit conflict on the question presented that calls for resolution by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
MICHAEL JAY SINGER
MICHAEL E. ROBINSON
Attorneys

 

 

JANUARY 2008

1 Petitioner also notes (Pet. 11-12, 14) that the Court of Appeals for Veterans Claims has used a local cost-of-living measure, and asserts that the Court of Federal Claims has required the use of the national CPI-U. That is incorrect. The claims court has in fact opted to use local inflation figures rather than the CPI-U when put to the choice. See Cox Constr. Co. v. United States, 17 Cl. Ct. 29, 37 (1989) (rejecting "the use of national CPI figures instead of those for San Diego or Los Angeles," even though the court has nationwide jurisdiction). In any event, any conflict between or within these courts' decisions can be ad dressed in the first instance by the Federal Circuit, which has jurisdic tion over both courts. See 28 U.S.C. 1295(a)(3), 38 U.S.C. 7292 (2000 & Supp. V 2005).

2 The Third Circuit used the terms "CPI-U" and "CPI-ALL" inter changeably. See Dewalt, 963 F.2d at 28.

3 The alternative rejected in Sorenson-awarding attorney's fees based on the cost of living in the year a final judgment is rendered, in stead of the year the underlying work was performed-was impermissi ble because it amounted to an unauthorized award of prejudgment in terest against the government. See 239 F.3d at 1148-1149.

4 The appellants had submitted some form of CPI data to prove the increase in the cost of living; the court's opinion does not indicate whe ther the appellant used the CPI-U or another index, and the court noted only that the appellants' proof was "proper." Johnson, 919 F.2d at 504.

5 See also Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir. 1991) (remanding an EAJA award for further consideration in light of Johnson, "[g]iven Johnson's emphasis on uniformity of hourly rates in a judicial district and that this case is also from the Eastern District of Arkansas").