* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

March 25, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20699

Summary Calendar

 

THERESA WASHINGTON,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART,

COMMISSIONER OF THE

SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-02-CV-1928

--------------------

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
No. 03-20699

-2-

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 costof-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

-3-

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

-4-

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.