Marie Lucie Jean v. Alan C. Nelson

KRAVITCH, Circuit Judge,

concurring in part and dissenting in part:

I concur in Parts I, II, III A and C of the majority’s opinion. The majority, however, permits an award of fees in excess of the $75 statutory cap for three reasons with which I disagree; I therefore respectfully dissent from Parts III B and IV.

First, I do not agree that the award of cost-of-living adjustments for services rendered prior to 1985 is permissible. In 1985, Congress provided 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 ... justifies a higher fee.” Assuming Congress meant what it said, Congress considered $75 per hour reasonable compensation given the cost of living in 1985. With a positive rate of inflation (see Hirschey v. F.E.R.C., 777 F.2d 1 , 5 n. 24 (D.C.Cir.1985)), $75 was a fortiori reasonable compensation given the cost of living in the years 1980 through 1984.

The Second Circuit in Trichilo v. Secretary of Health and Human Services, 823 F.2d 702 (2d Cir.1987), rejected this interpretation “as contrary to the legislative intent, unjustified under tenets of statutory construction, and inevitably bound to lead to incongruous results.” Id. at 705 . The court cited language in the statute providing that the Equal Access to Justice Act “ ‘shall be effective on or after the date of the enactment of this Act as if [it] had not been repealed.’ ” Id. (emphasis in original). In my view, however, these general words do not sanction disregard of particular language setting the cap at $75 per hour. Cf. Estate of Flanigan v. Commissioner, 743 F.2d 1526, 1532 (11th Cir.1984).

Exercising insight into the congressional decisionmaking process, the Trichilo court opined that Congress “made no decision that $75, measured in 1985 dollars, was still an appropriate cap_” 823 F.2d at 705 . The court also noted that it was not “told why the 1985 congress, obviously concerned ... about inflation ..., would want to ignore the inflation that had occurred between 1981 and 1985.” Id. at 706 . See also Allen v. Bowen, 821 F.2d 963, 967 (3d Cir.1987) (legislative history does not suggest that Congress’s “decision not to raise the $75 flat hourly rate was in any way indicative of its desire to reduce the cost of living adjustment”). One answer to the Trichilo court’s query is that Congress has no duty to explain itself. Moreover, Congress in 1985 still may have felt that $75 an hour was a reasonable rate for the public *781 funding of lawsuits, notwithstanding any concern for inflation.

Courts relaxing the cap have referred to the sound principle that Congress is presumed to be aware of prior judicial constructions of its statutes. Trichilo, 823 F.2d at 706 ; Sierra Club v. Secretary of the Army, 820 F.2d 513, 522 (1st Cir.1987). Invoking this principle does not, however, counter the possibility that by the very act of preserving the $75 cap, Congress evidenced an intent to modify the applicability of prior judicial decisions.

Courts also advance the time-honored “absurd result” argument in support of a holding that cost-of-living adjustments prior to 1985 are permissible. Trichilo, 823 F.2d at 706-07 ; Sierra Club, 820 F.2d at 523 . I find it plausible that Congress struck a balance between attorney compensation and concerns over an ever-increasing federal budget deficit. See Pierce, 108 S.Ct. at 2554 (“Congress thought that $75 an hour was generally quite enough public reimbursement for lawyers’ fees, whatever the local or national market might be”). Such a compromise may have been necessary in order to insure the re-enactment of the Equal Access to Justice Act. If so, the $75 cap represents a reasonable political compromise not open to judicial “interpretation.” Cf . Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 865-66 , 104 S.Ct. 2778, 2793 , 81 L.Ed.2d 694 (1984). But if no such balance was struck, and Congress in fact erred, the problem is for Congress, not the courts, to remedy.

Second, I also disagree with the majority’s holding that a lawyer specializing in immigration law may possess a special skill entitling him to increased fees. The depths of fourth-amendment law or first-amendment law, for example, are no less murky than the recesses of immigration law. With the precedent of the majority opinion, district courts will find it difficult to identify a legal specialty that does not justify an increase.

In its discussion of “special factors,” the Pierce Court stated:

We think [the phrase] refers to attorneys having some distinctive knowledge or specialized skill needful for the litigation in question — as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation. Examples of the former would be an identifiable practice specialty such as patent law, or knowledge of foreign law or language.

108 S.Ct. at 2554. Patent law and foreign law are narrow areas of specialization that generally require learning not common to lawyers in the United States. By contrast, competence in immigration law requires no peculiar base of knowledge; an attorney with a reasonable amount of “general law-yerly knowledge and ability” can learn immigration law. Allowing a premium for knowledge of immigration law therefore runs counter to the Supreme Court’s counsel to “preserve the intended effectiveness of the $75 cap.” Id.

Finally, I question whether the government’s “litigious position” may properly constitute a “special factor.” The district court described the government’s posture as follows:

Many of the government’s contentions and litigating postures were unwarranted and unnecessarily prolonged the litigation. The government used all of its considerable resources in opposing Plaintiff’s contentions at every turn. From pre-trial discovery, through trial and successive appeals, the government moved for stays of Court Orders, forced repeated applications for emergency relief, put Plaintiffs in a posture requiring a brief on all pleaded issues, on every motion, and opposed, in fact as well as law, each and every important issue asserted by Plaintiffs.

646 F.Supp. at 1318. The majority opinion instructs the district judge to take a fresh look at whether this behavior constitutes a “special factor,” advising that nothing “routine” or “generally applicable” to a “broad spectrum of litigation” can count (citing Pierce, 108 S.Ct. at 2554), but suggesting that “[i]t is easy to imagine a situation where a position that is not ‘substantially justified’ is exacerbated by improper *782-790 purposes in defending the lawsuit.” Ante note 13.

Certainly, government lawyers should be no less zealous than private lawyers. As outlined by the district court, the attorneys were simply making full use of available process to advance the interests of their client, the United States. I see no reason why attorney zeal should be a “special factor,” for Congress surely anticipated the zeal of its own lawyers when it set the $75 cap. Moreover, as a finding that the government’s position had no “reasonable basis both in law and fact” is a condition precedent to every EAJA award, allowing a premium based on the government’s “contentions and litigating postures” will likely lead courts to double-count the substantial-justification factor. Rule 11 sanctions are always available to compensate “a litigant whose opponent acts in bad faith in instituting or conducting litigation.” Fed.R. Civ.P. 11 advisory committee’s note.

As I would hold that premiums in excess of $75 per hour are not available for inflation prior to 1985, for knowledge of immigration law, or for the government's posture in litigation, I respectfully dissent from Parts III B and IV of the court’s opinion.