Oklahoma Aerotronics, Inc. v. United States of America, Oklahoma Aerotronics, Inc. v. United States of America

STEPHEN F. WILLIAMS, Circuit Judge,

concurring and dissenting:

The delay in award of fees was, all hands agree, extraordinary. Nothing happened for more than seven years&emdash;from the completion of briefing on the fee application in March 1982, until the Chief Judge took command of the matter in August 1989. Under our decision in Wilkett v. ICC, 844 F.2d 867 (D.C.Cir.), reh’g denied, 857 F.2d 793 (D.C.Cir.1988), the delay is plainly a “special factor” within the meaning of the Equal Access to Justice Act, 28 U.S.C. § 2412 (d)(2)(A), entitling the applicant to compensation. See Maj.Op. at 1349-50. Because I believe that the suitable method of compensating for delay in payment is the award of interest, as in the world at large, I cannot agree that it is enough merely to adjust the fee for inflation.

I start at a point slightly different from the court’s consideration of whether § 2412(d)(2)(A)’s reference to “reasonable attorney fees” entitles the fee applicant to interest for delay. As I read the cases, they are even more adverse to the fee applicant than the court suggests. Library of Congress v. Shaw, 478 U.S. 310, 321-23 , 106 S.Ct. 2957, 2965-66 , 92 L.Ed.2d 250 (1986), holds that federal sovereign immunity is so hostile to “interest” liability that a statutory provision for a “reasonable” attorney’s fee is not enough to authorize any compensation for delay, even the rather incomplete compensation afforded by an inflation adjustment. Compare Missouri v. Jenkins, 491 U.S. 274, 280-82 , 109 S.Ct. 2463, 2467-68 , 105 L.Ed.2d 229 (1989) (similar terms are adequate to authorize court to require a state to compensate for delay, notwithstanding the Eleventh Amendment).

*1353 In Wilkett , however, this court held that an “exceptional” delay, so long as it is not attributable to negligence of the prevailing party, may justify an increase in the fee award. 844 F.2d at 876 . 1 Wilkett’s route to that result is far from clear. The “special factor” clause of § 2412(d)(2)(A)(ii) merely releases the $75 cap that it itself imposes on recovery of “reasonable” fees. Since under Shaw compensation for delay does not even qualify as “reasonable”, it is hard to see how refinements in a clause that limits payment of reasonable fees can allow the applicant more compensation. Wilkett is, however, circuit law, and all members of the panel agree in faithfully adhering to it. 2 Wilkett being a given, we must apply it as best we can.

Wilkett itself sheds no real light on how to calculate compensation for delay. There the applicant requested $85 an hour for work billed in 1982-83 and recovered five years later. 844 F.2d at 876-77 . We upheld that exceedance of the cap, without discussing any general principles as to how to compensate for delay, saying only that “[t]he small increase in the adjusted cap that Wilkett has requested for this work is amply justified by the exceptional delay, through no fault of his own, in our consideration of his application.” Id. (The delay was due to a clerical error in the office of the court’s clerk. See id. at 870 .)

Thus the computational issue seems to me open. Why not address delay in the ordinary way? A person delayed in the collection of funds suffers two losses: first, income accruing from use of the funds, which he loses regardless of inflation; second, the erosion of the value of the currency through inflation. The interest rate compensates a lender for both. (More precisely, it compensates for the expected value of both. See Association of American Railroads v. ICC, 846 F.2d 1465 , 1474 n. 4 (D.C.Cir.1988).) I see no reason to compensate for only one.

The court quite rightly notes that district court decisions in this area are reviewable for “abuse of discretion”. See Maj.Op. at 1348. But while the Supreme Court adopted that standard for review of the computation generally, Pierce v. Underwood, 487 U.S. 552, 571 , 108 S.Ct. 2541, 2553 , 101 L.Ed.2d 490 (1988), it still proceeded to declare general principles as to the meaning of “special factor”. See id. at 571-74 , 108 S.Ct. at 2553-55 . Where an issue is susceptible of principled analysis, it seems to me to be the reviewing court’s responsibility to find and state the principles. Not to do so leaves district courts uncertain and litigants exposed to unnecessary judicial discretion. 3

Adopting the principle that interest is the appropriate device still leaves problems, to be sure. First, there is selection of a rate. EAJA’s only explicit interest provision, 28 U.S.C. § 2412 (f), incorporates the formula of 28 U.S.C. § 1961 (a), and thus supplies at least an analogy. The issue is in any event paralleled by the need to choose an index when the court adjusts only for inflation.

Second, if attorneys have a practice of anticipating some delay and therefore incorporating an implicit interest figure in their fees, allowance of interest on top would result in double counting. So a court must pay close attention to the evidence of private fees from which “lodestar” rates are drawn. Again the problem applies even where compensation for delay is limited to an inflation adjustment.

Third, the court must be careful to allow compensation only for the egregious portion of the delay. If a fee is charged and paid in October 1981 at $75 an hour, and recovered in 1990, it cannot be correct to treat the delay between October 1981 and (say) March 1982 as “special”. According *1354 ly, even if the government pays only in 1991, there should be no compensation for an initial period of tin special delay, running from incurrence of the fee to the date when delay became unreasonable. Again, the problem applies even where compensation consists only of an inflation adjustment. Cf. Maj.Op. at 1346 (noting that district court denied compensation for delay occurring after June 1989, thus effectively compensating only for egregious portion of delay).

Finally, the appellate court must not apply an interest rule in a way that defeats the district court’s exercise of its discretion. Although the district court here cut down only the applicant’s request for fees on the fee litigation itself, see Maj.Op. at 1346, it refused to make any cuts in the main application. That refusal may have been influenced by a sense that the compensation for delay was rather miserly. Accordingly, I would remand to the district court for it to award interest and to make such adjustments in the total award as its sound discretion counselled.

. This compensation is in addition to and different from the adjustment of the cap for inflation between the date of EAJA’s enactment and the date the fees were incurred, authorized by § 2412(d)(2)(A)’s explicit authorization of an adjustment based on "an increase in the cost of living”. See Wilkett, 844 F.2d at 874-75 .

. Thus there can be no compensation for delay in payment of expenses, an award not covered by the special factor provision. See Maj. Op. at 1350-51.

.The court’s opinion, rightly, does not bar a district court from awarding interest for extraordinary delay.