* District Judge of Eastern District of Texas, sitting by

designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 94-30217.

Paula HALL, as next friend for Robert Williams IV, PlaintiffAppellant,

v.

Donna SHALALA, Secretary of Health and Human Services, DefendantAppellee.

April 25, 1995.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before BARKSDALE and PARKER, Circuit Judges, and COBB, District

Judge*.

ROBERT M. PARKER, Circuit Judge:

Appellant appeals the amount of attorney's fees awarded under

the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

Finding no abuse of discretion, we affirm.

FACTS

Defendant-Appellee, Donna Shalala, Secretary of Health and

Human Services ("the Secretary") denied Social Security benefits to

Plaintiff-Appellant Robert Williams, IV ("Williams"). Paula Hall,

("Hall") as next friend for Williams, brought an action in federal

court for review of the Secretary's decision. The case was

remanded for reconsideration in light of the proper legal

standards, and Williams was awarded benefits.

Hall then moved for attorney's fees before the magistrate
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judge pursuant to the EAJA, seeking fees in excess of the $75 per

hour statutory cap based on inflation since 1981, the year EAJA was

enacted. The magistrate recommended that Hall be awarded fees in

the amount of $75 per hour and Hall objected. The district court

adopted the magistrate judge's recommendation and awarded attorneys

fees of $75 per hour.

STANDARD OF REVIEW

This Court will modify an award of attorney's fees made under

the EAJA only if the court below abused its discretion in setting

the amount of the award. Pierce v. Underwood, 487 U.S. 552, 570,

108 S.Ct. 2541, 2553, 101 L.Ed.2d 490 (1988).

ANALYSIS

 The EAJA provides that attorney's fees "shall be based upon

prevailing market rates for the kind and quality of the services

furnished," but "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."

28 U.S.C. § 2412(d)(2)(A)(ii).

Hall sought attorney's fees in excess of $75 per hour, arguing

that $111.77 per hour, derived by adjusting the $75 statutory cap

by the cost of living increase between 1981 and 1994, was a

reasonable rate. The district court recognized that "while the cap

has now changed because of inflation to approximately $111 per

hour, that cap remains a ceiling under which $75 per hour attorney

fees awards can certainly be awarded." The district court found
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that "fee awards of $75 per hour in this area satisfy the "dual

purpose' of the EAJA § 2412(d) "to ensure adequate representation

for those who need it and to minimize the cost of this

representation to taxpayers,' " citing Baker v. Bowen, 839 F.2d

1075 (5th Cir.1988). The court went on to note that an upward fee

adjustment based on the limited availability-of-attorney factor was

likewise not warranted by the evidence in this case.

Did the Court Consider the Right Factors?

First, Hall contends that the district court erred by failing

to take into account the increase in the cost of living and to

adjust the cap upward from $75. We disagree. The district court

specifically recognized that the statutory cap, adjusted for

inflation, was approximately $111 at the time of the award in this

case. Nonetheless, the district court found that a $75 per hour

award, well below the $111 ceiling, satisfied the purposes of the

EAJA.

Second, Hall complains that the district court erred in

considering the special statutory factor. Hall does not take the

position that the limited number of attorneys available to handle

these cases, or any other special factor, warranted an above-cap

upward adjustment. Instead, she argues that once the $75 cap has

been adjusted for inflation, the EAJA fee analysis reverts to the

normal "reasonableness" determination, under which the special

factors referenced in the statute are not controlling. We

understand this argument as a contention that the district court's

consideration of the availability-of-attorney factor was error. It
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was not. The court merely considered the special factor set out in

the statute that could potentially have impacted the question

before it. He determined that it did not. Neither the

consideration of the factor nor the conclusion that it did not

impact the outcome was error.

Third, Hall contends that the district court erred in failing

to award "reasonable attorney fees ... based on the prevailing

market rates for the kind and quality of services furnished." 28

U.S.C. 2413(d)(2)(A). The Supreme Court has held that reasonable

rates are determined by reference to ".. those prevailing in the

community for lawyers of reasonably comparable skill, experience

and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104

S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). The Court further

indicated that the twelve factors set out in Johnson v. Georgia

Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974) are relevant

in the rate determination. Id. However, the Supreme Court has

made it equally clear that reasonable market rates for attorneys

cannot be considered as a special factor justifying an upward

adjustment of the cap. Pierce v. Underwood, 487 U.S. 552, 573, 108

S.Ct. 2541, 2554, 101 L.Ed.2d 490 (1988).

The question presented in this appeal is whether and to what

extent the special factors, particularly availability-of-attorneys,

control the determination of what is a "reasonable" attorney fee

within the range allowed by the cap. This Court has held:

[It is not necessary] that attorneys' fees awards track the

cost-of-living index for the geographical area. Although this

indicator is certainly significant, it may not be conclusive;

such a decision is within the discretion of the district
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court. In order to satisfy both goals of the provision,

however, rates should be increased only to the extent

necessary to ensure an adequate source of representation and

should never exceed the percentage by which the market rate

attorneys' fees have increased since the statute was enacted

in 1981.

Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir.1988).

The Supreme Court, in Pierce v. Underwood, 487 U.S. 552, 108

S.Ct. 2541, 101 L.Ed.2d 490 (1988), decided after Baker, excluded

the EAJA's cost of living provision from its review of EAJA's

special factors and treated cost of living adjustment as part of

the cap itself, which it termed "$75 cap (adjusted for inflation)"

or "$75 per hour (adjusted for inflation)." Pierce, 487 U.S. at

571-74, 108 S.Ct. at 2553-54. The separation of the cost of living

increase from the special factor analysis is appropriate under the

statute, which separates the cost of living authorization from the

special factor issue, authorizing an increase in attorney fees if

"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."

28 U.S.C. 2412(d)(2)(A)(ii) (emphasis added). Baker likewise made

clear that this Court recognizes the two independent prongs for fee

adjustment. See Baker, 839 F.2d at 1985 n. 4.

The statute and the cases make it clear that the EAJA imposes

a $75 cap that can be exceeded only if the court determines that a

higher fee is justified by inflation or a special factor, such as

limited availability of attorneys. The cap, adjusted for

inflation, cannot be exceeded absent a finding of other special

factors not specifically delineated in the statute. However, a
 

1See, e.g., Mark v. Shalala, Civil Action No. 92-1202,

Eastern District of Louisiana, wherein plaintiff's attorney's

fees were set at $111.77 per hour; Robinson v. Sullivan, Civil

Action No. 91-2216, Eastern District of Louisiana, wherein

plaintiff's attorney's fees were set at $100. 

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district court, in its discretion, may determine that a fee below

the established ceiling is a reasonable attorney's fee award based

on the facts of a particular case.

We hold that the district court was correct in adjusting the

$75 statutory cap upward to $111 due to inflation. The district

court was further justified in considering the goals of the statute

in arriving at a reasonable rate of attorney's fees within the cap.

In sum, the district court in this case did not abuse its

discretion in arriving at a reasonable hourly rate for Hall's

attorney.

Uniformity

The trial court recognized that:

the decision on whether or not to adjust for cost of living

increases is not an "individualized' one[ ] and other courts

in this district have in fact made upward adjustments based on

the cost of living increases. However, this court disagrees

with those other courts and finds that fee awards of $75 per

hour in this area satisfy the "dual purposes' of EAJA.1

In Baker, we held that a determination of the appropriateness of

increases based on the cost of living factor and the

availability-of-attorneys factor must be uniform among the Dallas

district courts. Likewise, these factors should be uniformly

applied by the New Orleans district courts. Although there appears

no justification in the record of this case for remand, we invite

the district judges of the Eastern District of Louisiana to address
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any lack of uniformity in the district and to address the issue

with a view toward developing the required uniformity.

CONCLUSION

The attorney's fees award entered by the district court is

AFFIRMED.