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Equal Access to Justice (“EAJA”) fees can be obtained in cases against many different federal agencies. The most common types of cases where EAJA fees are sought involve Social Security Administration, Department of Veterans Affairs, Department of the Interior, Securities and Exchange Commission, Environmental Protection Agency, Department of Homeland Security, Department of Defense, Department of Commerce.[1] There are dozens of other federal agencies against which EAJA fees can be obtained.[2]

EAJA fees are not very large by the measures of the contemporary legal market because of the statutory cap. [3] The largest EAJA fees for the authors’ firm in the past year have been just over $190 per hour after the cost-of-living adjustment. This has even been the case for attorneys with over 20 or 30 years’ experience. Some courts such as the Ninth Circuit post the maximum allowed EAJA rate directly on their website. In the Ninth Circuit, the largest EAJA fee based on the cost-of-living adjustment allowed for the first half of 2014 was $189.78.[4] Maximum EAJA rates are very similar in other jurisdictions.Many attorneys would find such rates laughable. As an example, in other types of cases in federal courts attorneys earn well over $400 per hour.[5] In consumer law cases, attorneys with only 1 to 3 years of experience receive, on average, over $200 per hour for services rendered before the federal court. More senior attorneys, with over 30 years’ experience, receive an average in excess of $400 per hour.

Notwithstanding the low EAJA rates as compared to the average market rates, some Government attorneys oppose the requested hourly rates based on the EAJA and some judges reduce requested hourly EAJA rates sua sponte even if there is no objection from the Government. In determining whether to award requested rates based on the EAJA, some judges choose to rely on the Civil Justice Act (“CJA”) rates. The proponents of such approach argue that EAJA fees should not exceed the hourly rates in death penalty defense cases based on a questionable theory that Social Security disability appellate work cannot be as difficult and demanding as work in capital punishment cases. In 2014, CJA rates in capital punishment cases have been around $180 per hour,[6] but this figure varies slightly from jurisdiction to jurisdiction.

Compared to the figure of around $190 noted above, this difference is not very large, yet the Government and some judges would still fight over the difference. The question that arises in such situations is whether the attorneys representing disability claimants should fight over this small reduction. From the standpoint of the Government, it may be worth it as it could save some money in the long-term. From the standpoint of the plaintiff’s attorney, the time spent writing the objection may not justify the cost, but it may keep the attorney away from the slippery slope. But how do you persuade the judge to leave your hourly rate undisturbed?

Let us start from the beginning.In 1980, Congress enacted the EAJA statute, which originally contained a sunset provision effective on September 30, 1984.[7] EAJA requires that the amount of attorney hourly fees “be based upon prevailing market rates for the kind and quality of the services furnished”.[8] These fees could not exceed $75 per hour unless the Court determines that an increase in the cost-of-living or a “special factor”—such as limited availability of qualified attorneys for the proceedings involved—justifies an award higher than this amount.[9] Some fifteen years later, Congress duly increased the hourly EAJA statutory cap to $125 for all civil actions filed on or after March 29, 1996.[10] That is still the cap today. However, currently, there is also a proposed legislation pending that would further revise the EAJA.

The legislation, deemed Government Litigation Savings Act, among other things, proposes to increase the cap to $200, but would eliminate the cost-of-living and special factors adjustments of the EAJA fees.[11] Arguably, the EAJA caps are based on some budgetary considerations. However, as the Seventh Circuit pointed out, EAJA caps also have an arbitrary quality to them as they stem from the fact that “different majorities in the legislature at different times have different willingness to expend public funds” Johnson v. Daley, 339 F.3d 582, 590 (7th Cir. 2003).Before enacting the EAJA, the legislature noted that the purpose of the Act is to avoid deterrence “from seeking review of, or defending against, unreasonable government action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.” [12]

Legislative history further notes that “the bill rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy.” [13]As the legislative history suggests, the amount of the fee is based on policy and not based on the difficulty of the cases that fall under the EAJA. The Government and judges violate these policies by seeking to reduce the hourly EAJA fee rate and peg it to the maximum rate allowed in death penalty cases. In Rodgers v. Astrue, 657 F. Supp. 2d 1275 (M.D. Fla. 2009), the Court refuse to peg the EAJA hourly rates to the CJA rates in death penalty cases. It reasoned that rules concerning fees for attorneys pursuing Social Security Disability cases and rules concerning fees for court-appointed attorneys in death penalty cases come from separate statutes enacted by Congress.[14] The court noted that given the “labyrinth” of rules that Social Security regulations and procedures provide, attorneys taking those types of cases perform the service to the public.[15] Although this is a different type of benefit from the one provided by the death penalty attorneys, it is an important public benefit nonetheless.[16]

In Williams v. Astrue, No. 5:07-cv-110-Oc-GRJ, 2008 U.S. Dist. LEXIS 101309 (M.D. Fla. Nov. 25, 2008), the court similarly refused to peg the EAJA rates to the CJA rates. The court noted that the EAJA statute is “intended to encourage private litigation implementing important public policies.”[17] Its express provision “demonstrates the Congressional intent that the EAJA’s ‘maximum’ statutory rates should be—subject to the Court’s discretion—adjusted over time.[18] While, the EAJA has been designed to provide private parties with “equal access” to the judicial system, it was not designed to be pegged to a rate equal to the prevailing market rate.[19] Instead it is capped at $125 and can be adjusted upward by the court to account for the cost-of-living.[20] The Court further noted that CJA rates are based on a different statutory scheme, [21] but did little to explain the difference between CJA and EAJA and how CJA rates are calculated.

The hourly rate in the CJA death penalty has its own policy behind it. It was set based on “a reasonable basis upon which lawyers could carry out their profession’s responsibility to accept court appointments . . . [despite being] below normal levels of compensation in legal practice.”[22] While this policy consideration is similar in spirit to the one in EAJA, the structure for setting CJA rates that results from t his policy is different from the structure for setting the EAJA hourly rates. The CJA rates in death penalty cases are adjusted by the Judicial Conference, which is authorized to do so annually.[23] By contrast, the EAJA, maybe adjusted by the cost-of-living percentage at the specific point in time the work is done or by some other “special factor”.[24]

Therefore, the adjustment of the hourly EAJA rate “is based upon an index and is not based upon what the Court believes should be an appropriate hourly rate.”[25] Pegging the EAJA hourly rates to CJA rates, essentially delegates the control over the EAJA rates to the Judicial Conference in CJA cases instead of using the cost-of-living index as directed by the EAJA statute. That was not the Congressional intent in the case of the EAJA. Instead of giving the responsibility to the Judicial Conference for adjusting EAJA caps, the Congress set its own cap for EAJA fees that could only be adjusted based on cost-of-living or based on a “special factor”. [26]

Attorneys handling Social Security appeals are subject to a higher uncertainty than the death penalty attorneys as far as remuneration. The attorneys who represent defendants in criminal cases get paid based on CJA regardless of the outcome.[27] In the case of EAJA fees, the claimant must be a “prevailing party” in order to be entitled to the EAJA fee.[28] And even then, the decision of the Government must not be “substantially justified” before the EAJA fee could be awarded.[29] Therefore, even if death penalty cases were more difficult than the Social Security Disability appeals, the EAJA rates are much more contingent in nature, which offsets the purported difference in difficulty.

The scope of application of EAJA with regards to hourly fees is also a lot broader than in CJA cases. While CJA hourly rates apply to criminal matters. EAJA hourly rates apply to a variety of different areas of law of different complexity. The EAJA applies a wide range of awards in which the cost of litigating fee disputes would equal or exceed the cost of litigating the merits of the claim.[30] It applies to all agencies regulated by the Administrative Procedure Act.[31] EAJA fees have been awarded in many types of cases and forums that do not just involve Social Security Administration.[32] Adjusting the hourly rate on a case-by-case basis would result in a ladder of different rates based on difficulty, which is completely unnecessary because the EAJA caps are already significantly below the market rates.

In conclusion, the practice of reducing the hourly EAJA rates below the cap is unnecessary given that the EAJA cap is already significantly below the market rate. Persistent pegging of the EAJA rate to the CJA rate in death penalty cases is unwarranted and violates the federal statute which permits adjusting rate only either based on the cost-of-living or based on a special factor such as lack of qualified attorneys for the proceedings involved. The EAJA and CJA caps are based on two fundamentally different statutes with different Congressional findings and policies. Pegging EAJA hourly rates below the CJA rates based on the assertion that Social Security cases are less difficult than death penalty cases would unnecessarily complicate EAJA fee jurisprudence as the EAJA applies to a great diversity of cases of different complexities and the EAJA cap is already significantly lower than the market rate.

Carol A. Avard is managing partner at Avard Law Offices, which has multiple offices located in Florida. She focuses his practice on personal injury, social security disability, long term disability, and employment discrimination. Mark Zakhvatayev, also of Avard Law Offices, focuses his practice on immigration, personal injury, social security disability, long term disability, and employment discrimination.

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