is untimely under pre-Melkonyan law. Accordingly, the court finds that it has jurisdiction to consider Lindner's present fee petition.
The Secretary also does not assert that its position regarding Lindner's disability claims was "substantially justified" or that "special circumstances" make a fee award to Lindner unjust. The court therefore finds that the Secretary has waived any objection on these bases to Lindner's fee request.
Finally, the court can address the specifics of Lindner's fee petition. The $ 53,831.25 in attorney's fees requested is based on Linder's three attorneys' 179.25 hours of work in the proceedings before this court and the Seventh Circuit and 123 hours worked in the remand proceedings before the Secretary, all at $ 175 hourly, and a third-year law student's 12.5 hours of work before this court at $ 75 hourly.
Regarding the number of hours, the Secretary argues that all of Lindner's post-remand hours should be disallowed because such hours are not compensable following a sentence four remand. The Secretary additionally contends that some of the hours requested are duplicative.
EAJA attorney's fees are generally not recoverable for time spent on administrative proceedings before the Secretary. Berman v. Schweiker, 713 F.2d 1290, 1293 (7th Cir. 1983). When a court remands a case to the Secretary, however, and retains jurisdiction "pending a decision from the Secretary which will determine the claimant's entitlement to benefits . . . attorney's fees for representation on remand are available . . . [under] the EAJA." Sullivan v. Hudson, 490 U.S. at 892. The Secretary argues that under Melkonyan, 111 S. Ct. at 2162, 2165, EAJA fees are only available for remand proceedings before the Secretary when the district court retains jurisdiction for entry of a final judgment following completion of the remand proceedings, which can only occur in sentence six remand cases. While Melkonyan is not explicit on this point, the court agrees that Melkonyan indicates that EAJA feed for remand work before the Secretary are available only in sentence six cases. See Wilson v. Sullivan, 751 F. Supp. 1281, 1285 (N.D. Ill. 1990) ("there appear to be strong reasons to conclude that Hudson does not reach an ALJ decision on a fourth sentence remand under any circumstances"). Nonetheless, the court has already determined that Melkonyan should not retroactively apply here, and the prior Seventh Circuit rule provided that prevailing party status, based on an entitlement to benefits, could not be determined until after remand proceedings before the Secretary are complete. Singleton, 841 F.2d at 711. Moreover, Lindner's prevailing party status was enhanced by the remand proceedings because the Secretary, through an ALJ, accepted an earlier onset date for Lindner's disability and thereby increased her entitlement to benefits. Accordingly, the court will allow Lindner to recover EAJA fees for time her attorneys spent on post-remand proceedings before the Secretary.
Nonetheless, the court agrees with the Secretary that there is some duplicative or unnecessary hours, such as several 15-minute items for phone calls to court clerks or other parties regarding scheduling, which should normally require one minute or less, and for unnecessary letter-writing. These problems are very limited, however, and the court therefore cuts the number of attorney hours requested, 302.25, by five percent rounded to the nearest full hour, leaving 287 hours. The full 12.5 hours of law student time requested will be allowed.
The Secretary also objects to the requested $ 175 and $ 75 hourly rates for attorneys and the law student respectively. The IAJA set a maximum $ 75 hourly rate for attorneys, unless the court finds that higher rates are justified by cost-of-living increases or a "special factor" such as a limited availability of attorneys for such proceedings. 28 U.S.C. § 2412(d)(2)(A). Lindner contends that the "special factor" exists here because few, if any, qualified attorneys in the Chicago area are willing to take such cases at a $ 75 rate; a $ 175 rate is necessary to attract experienced counsel for such cases in this area. Such general market rate factors, however, have been rejected as a "special factor" by the Supreme Court. Pierce v. Underwood, 487 U.S. 552, 571-72, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988). "Special factor" instead refers to specialized skills necessary for the particular case, which Lindner has failed to show. Id. at 572-73.
Alternatively, Linder seeks a cost-of-living increase to $ 148.46 for the attorneys based on the "legal services" increase listed in the Consumer Price Index ("CPI"). As a further fallback position, Linder suggests a $ 112.50 hourly rate based on the "all items" increase in the CPI. The Secretary argues that, if any fee award is allowed, the "all items" CPI increase should be applied, calculated as of the time the legal services were rendered rather than as of the present. Under Perales v. Casillas, 950 F.2d 1066, 1074-75 (5th Cir. 1992), the Secretary notes, allowing cost of living increases for the period between performance of the services and payment would constitute an impermissible interest award against the government.
The court agrees with those courts that have applied the "all items" CPI figure as the best means of implementing Congress's allowance in § 2412(d)(2)(A) of "cost of living" adjustments to the $ 75 attorney's fee ceiling. See, e.g., Sullivan v. Sullivan, 958 F.2d 574, 576-77 (4th Cir. 1992); Uskokovic v. Sullivan, 772 F. Supp. 387, 392-93 (N.D. Ill. 1991). The court, however, rejects the Perales court's finding that post-performance increases constitute interest. Congress intended that counsel be compensated at $ 75 in 1981 dollars, based on the year the EAJA was first enacted. Sullivan v. Sullivan, 958 F.2d at 578; Perales, 950 F.2d at 1074 n.9; Uskokovic, 772 F. Supp. at 393 n.3. Calculating the appropriate increase as of the time of the fee award, rather than of performance, makes more logical and practical sense. It is hard to consider an increase "interest" for a period when the claimant had no entitlement to the fees. And as performance may occur over a long period of time, calculations of the appropriate increase would be unnecessarily complicated by use of the performance date for this purpose. The most common approach appears to be calculating the cost of living increase as of a time near the award date. See, e.g., Butts, 775 F. Supp. at 1173 (July 1991 benchmark, October 1991 award at $ 111.37 rate); Uskokovic, 772 F. Supp. at 393 (December 1990 benchmark, July 1991 award at $ 107.25 rate); Kidd v. Sullivan, No. 87 C 8532, 1990 U.S. Dist. LEXIS 8394, at *4 (N.D. Ill. July 2, 1990) (January 1990 benchmark, $ 104 rate awarded). Moreover, the Secretary has failed to suggest a particular fee rate. Lindner suggests an "all items" increase to $ 112.50 using a January 1992 benchmark. The $ 112.50 figure is in line with the rates awarded in Butts, Uskokovic and Kidd, and is therefore accepted.
Finally, the $ 75 hourly rate requested for the third-year law student's time is cut to $ 40. Although higher law student rates have been approved, see, e.g., Butts, 775 F. Supp. at 1173 ($ 75); Uskokovic, 772 F. Supp. at 394 ($ 70 for the same law student who worked on this case); Littlefield v. Mack, 789 F. Supp. 914, 919 (N.D. Ill. 1992) ($ 60), the court considers a $ 40 rate appropriate, as was allowed in Kidd.
There being no objection, the full $ 1,713 in expenses and $ 60 in costs is allowed.
Lindner's fee petition is granted in part and denied in part. Lindner is awarded fees of $ 32,787.50, expenses of $ 1,713.00 and costs of $ 60.00, for a total award of $ 34,560.50. The Secretary is directed to pay this judgment to Lindner's attorney, Frederick J. Daley, who shall then reimburse Lindner for any expenses or costs which she has already paid.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court