holding that, in light of the Supreme Court’s decision in Library of Congress v. Shaw, 478 U.S. 310, 320-22, 106 S.Ct. 2957, 2965, 92 L.Ed.2d 250 (1986), a “current” period cannot be used
How later courts described this case
- holding that, in light of the Supreme Court’s decision in Library of Congress v. Shaw, 478 U.S. 310, 320-22, 106 S.Ct. 2957, 2965, 92 L.Ed.2d 250 (1986), a “current” period cannot be used
- holding that, in light of the Supreme Court’s decision in Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), a “current” period cannot be used
- holding that cost of living adjustment should be made using a different hourly cap for each year in question
- finding that the COLA should be calculated separately for each year that services were provided
Written by the judges who cited it.
The opinion
KAREN LeCRAFT HENDERSON, Circuit Judge,
concurring:
I concur in the panel opinion although I disagree with the proposition that a district court’s determination whether to enhance an EAJA award for the “special factor” of delay should be reviewed for abuse of discretion. The Supreme Court has made it clear that an attorney’s fee award cannot be increased for delay without an express statutory waiver of sovereign immunity from interest liability. See Library of Congress v. Shaw, 478 U.S. 310 , 106 S.Ct. 2957 , 92 L.Ed.2d 250 (1986). Because the EAJA lacks such a waiver, fees awarded under the statute can never be enhanced for delay as a matter of law. Accord Oklahoma Aerotronics, Inc. v. United States, 943 F.2d 1344, 1352-53 (D.C.Cir.1991) (Williams, J., concurring and dissenting); Wilkett v. ICC, 857 F.2d 793, 795 (D.C.Cir.1988); (Starr, J., dissenting from denial of rehearing en banc); Shultz v. Crowley, 802 F.2d 498, 511-12 (D.C.Cir.1986) (MacKinnon, J., dissenting); Marcus v. Shalala, 17 F.3d 1033, 1039 (7th Cir.1994). Thus, given the freedom I would affirm the district court’s decision on the ground that the EAJA does not authorize a delay enhancement. Nevertheless, circuit precedent holds otherwise, see Wilkett v. ICC, 844 F.2d 867 (D.C.Cir.), rehearing denied, 857 F.2d 793 (1988), and “[t]he law of this Circuit, whether in error or not, is binding absent correction by a higher court,” National Treasury Employees Union v. United States, 990 F.2d 1271 , 1286 n. 7 (D.C.Cir.1993) (Sentelle, J., dissenting) (citing Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 49 (D.C.Cir.1987)); cf. Oklahoma Aerotronics, Inc., 943 F.2d at 1353 (Williams, J., concurring and dissenting) (“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] we must apply it as best we can.”) (footnote omitted).