* 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opinion should not be published and is not precedent except under the limited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

September 7, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30550

Summary Calendar

ANGELA FAYE ROBINSON,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, Commissioner of Social Security,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:02-CV-105

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

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Angela Robinson argues that the district court erred in

awarding her, under the Equal Access to Justice Act, 28 U.S.C. §

2412(d), only $125 per hour in fees instead of various inflationadjusted amounts in the $140s per hour, contending that other

cases, see Islamic Center of Mississippi v. City of Starkville,

876 F.2d 465, 469 (5th Cir. 1989); Powell v. C.I.R., 891 F.2d

1167, 1173 (5th Cir. 1990), render her uncontested request for

fees prima facie reasonable and that our cases dictate an
No. 05-30550

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1 We do not decide whether it could have awarded less than $125, a

question for which Robinson’s procedural argument - that the court should

award the “prevailing market rates” absent the caps coming into play - has

direct ramifications since here the “prevailing market rates” were more than

$150, rendering an award less than $125 detached from either the “prevailing

market rates” or any cap.

inflation adjustment except in rare circumstances not present

here, see Washington v. Barnhart, 93 Fed. App’x 630 (5th Cir.

2004) (citing Baker v. Brown, 839 F.2d 1075 (1988)). Or, rather,

Robinson argues that the court erred in the procedure it used to

determine that amount, neglecting to first calculate the

“prevailing market rates,” and, if that amount is higher than the

$125 statutory cap, then determine whether inflation or “special

factors” justify increasing that cap and the resulting award, up

to those market rates.

We disagree. First, we need not analogize to non-EAJA cases

given the EAJA cases directly on point. Second, we made it clear

in Hall v. Shalala, 50 F.3d 367, 369-70 (5th Cir. 1995), that a

court can, using its discretion to analyze the particular facts

of the case, including things considered “special factors” under

the statute, award less than the cap, as adjusted by inflation or

by the “special factors.” See also Clevenger v. Chater, 977 F.

Supp. 776, 780 (M.D. La. 1997). Here, then, even though the

inflation-adjusted cap was in the $140s per hour (Robinson did

not argue that the cap should be adjusted for “special factors”),

the court was free to award less than that ceiling, at least down

to $125.1 And we review the court’s use of that freedom only for

abuse of discretion. See Baker v. Bowen, 839 F.2d 1075, 1082
No. 05-30550

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(1988). The court explained that its award of $125 was

“reasonable and serves the goals of the EAJA by helping to ensure

an adequate source of representation in social security appeals

and minimizing the cost of that representation to the taxpayers.”

We see no abuse of discretion given that explanation. See id. at

1084 (explaining that whether to award more than $125 because of

inflation is discretionary and should only be done to extent it

furthers the goals of the EAJA, namely securing adequate

representation); Clevenger, 977 F. Supp. at 782 (choosing a

figure in the permissible range based on the goals of the EAJA).

Robinson’s argument that the court erred procedurally is

unconvincing. Even if courts should explicitly engage in the

two-step analysis - first determine the “prevailing market rates”

and award them, if less than $125; then, only if they are more

than $125, consider whether inflation or “special factors”

warrant awarding more than $125, up to those market rates - the

court here implicitly did so, and any error could only have

harmed Robinson. That is, the court likely assumed that

Robinson’s “prevailing market rates” were higher than $125, as

Robinson now argues on appeal. Hence it properly reached the

question whether it would use inflation to adjust the $125 cap,

up to the inflation-adjusted rates requested by Robinson, and it

decided not to. If it had assumed that Robinson’s “prevailing

market rates” were less than $125, its error was giving Robinson

too much - $125 instead of the lower market rate. Indeed, that
No. 05-30550

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was the concern animating Clevenger’s insistence on the two-step

analysis: that a court skipping the “prevailing market rate”

analysis would award an amount equal to $125 plus inflation, more

than the actual market rate. In short, the court reached the

precise question it should have: whether the facts of the case

warranted using inflation to raise the $125 cap. And it properly

exercised its discretion in answering that question.

AFFIRMED.