Figueroa v. Sullivan

ORDER

PEREZ-GIMENEZ, Chief Judge.

Before us is counsel’s petition requesting a fee award under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Counsel requests the approval of a fee in the amount of $1,525.50 for a total of 18 hours of legal work expended in this case. The government opposes counsel’s petition to grant an award in excess of $75.00 per hour.

The statute provides:

The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished except that ... 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. (underscoring ours) 28 U.S.C. § 2412(d)(2)(A).

It is clear that the cost of living fee increases should not be automatic. Bunn v. Bowen, 637 F.Supp. 464, 475 (E.D.N.C. 1986). Rather, discretion is given to the courts. Sierra Club v. Secretary of the Army, 820 F.2d 513, 521-23 (1st Cir.1987).

We find that the increases above the rate of $75 should be awarded sparingly and only after particularized and careful analysis of the individual facts of the case. Baker v. Bowen, 839 F.2d 1075, 1082 (5th Cir.1988).

In the instant case, after an evaluation of the special factors presented, we see no need to depart from the $75-per-hour rate set forth in the EAJA. Only in rare circumstances should the $75 rate be adjusted. Baker v. Bowen, supra, 1082, 1084.

WHEREFORE, in view of the foregoing, counsel is awarded attorney’s fees under the EAJA in the amount of $1,350.00 for 18 hours of legal work, at the statutory rate of $75 per hour.

IT IS SO ORDERED.