SUBJECT: St. Regis Mohawk Tribe

FINAL DECISION ON REVIEW OF
ADMINISTRATIVE LAW JUDGE DECISION

The Indian Health Service (IHS) appealed an October 2, 2002 Amended Decision by Administrative Law Judge (ALJ) Marcel S. Greenia granting the St. Regis Mohawk Tribe (St. Regis) attorney's fees and expenses under the Equal Access to Justice Act (EAJA) (5 U.S.C. � 504) at a rate of $125 per hour. St. Regis Mohawk Tribe v. Area Director, Nashville Area Indian Health Service (Amended ALJ Decision).

Based on the following analysis, I overturn that part of the Amended ALJ Decision pertaining to the appropriate hourly rate of attorney's fees and expenses due St. Regis. I award legal fees to St. Regis at the rate of $75 per hour.

Background

On January 17, 2002, I issued a decision in St. Regis Mohawk Tribe v. Area Director, Nashville Area Indian Health Service, DAB No. 1808 (2002), affirming an earlier Recommended Decision by Judge Greenia on substantive issues of law regarding the IHS's partial declination of St. Regis's Annual Funding Agreements over a three-year period.

St. Regis timely applied to the ALJ for attorney's fees and expenses under EAJA. The ALJ granted St. Regis's EAJA request in general. The ALJ reduced the number of hours for which St. Regis could claim EAJA reimbursement and then awarded fees at a rate of $125 per hour, although the IHS contended that the maximum allowable rate was $75 per hour.

The ALJ Decision

The IHS appealed only the hourly rate of reimbursement applied by the ALJ. Thus, I review only that aspect of the Amended ALJ Decision.

The ALJ's analysis of the hourly rate issue was relatively succinct. The ALJ noted that, as amended in 1996, the EAJA, at 5 U.S.C. � 504(b)(1)(A), provides that reasonable attorney's fees shall not exceed $125 per hour. Before the ALJ, the IHS argued that the applicable Interior Board of Indian Appeals (IBIA) regulation at 43 C.F.R. � 4.607 capped any award of attorney's fees at $75 per hour. The ALJ determined that there were discrepancies between the IBIA regulation and EAJA and in such cases, the statute controlled. The ALJ then reasoned that, in EAJA, "Congress provided that the $125 per hour attorney rate for civil actions and adversary adjudications shall be applied." Amended ALJ Decision at 4 (unnumbered). The ALJ cited a Notice of Proposed Rulemaking (NPRM) by the U.S. Department of Health and Human Services (Department) aimed at updating its EAJA regulations to, among other things, increase the maximum hourly rate for attorney's fees to $125. In its accompanying comments, the Department noted that it had been "processing fee applications under the current regulations except to the extent that the amended statute requires changes." 67 Fed. Reg. 52,697 (Aug. 13, 2002). The ALJ concluded that, based on the legislation which he had cited and the experience of the law firm representing St. Regis, $125 constituted a reasonable hourly rate. Amended ALJ Decision at 3-4 (unnumbered).

For the reasons discussed below, I find that the $75 per hour maximum rate governs any EAJA award against the IHS.

I find that the EAJA statute poses no conflict with the IBIA EAJA regulations. Even if there were a conflict, I would not uphold an award of attorney's fees in excess of the amount permitted by regulation.

The statute, as relevant here, merely provides that the maximum hourly rate for attorney's fees under EAJA shall not exceed $125 per hour. By establishing a maximum amount to be paid to an eligible party, the statute does not set a universal rate of reimbursement. The statute at 5 U.S.C. � 504(c)(1) provides that "each agency shall by rule establish . . . procedures for . . . an award of fees and other expenses." Additionally, the regulation at 25 C.F.R. � 900.177 makes IBIA regulations at 43 C.F.R. �� 4.601 through 4.619 applicable to proceedings such as the current one involving St. Regis. As currently written, 43 C.F.R. � 4.607 sets the maximum to be paid under EAJA at $75 per hour. Since that rate does not exceed the statutory maximum, I do not read the statute and regulation as conflicting. ⁽¹⁾

I find erroneous the ALJ's determination that "Congress provided that the $125 per hour attorney rate for civil actions and adversary adjudications shall be applied." The EAJA statute merely provides that "attorney fees shall not be awarded in excess of $125 per hour." The statute clearly sets a maximum, not a minimum, award rate. With this language, Congress established an hourly reimbursement ceiling. The statute cannot be construed as requiring that the $125 per hour rate must be applied in all instances without distorting its plain English meaning. ⁽²⁾

Equally unavailing is the St. Regis notion, adopted by the ALJ, that the discussion, in this Department's NPRM, of a proposed EAJA hourly rate of $125 should be a factor in deciding this case. If anything, the fact that the increase has only reached the NPRM stage overwhelmingly supports the notion that the Department has yet to increase the award rate. Further, the IBIA regulations govern this case, not this Department's regulations. Moreover, the ALJ's citation to the language in the NPRM "we have been processing fee applications under the current regulation except to the extent that the amended statute requires changes" (67 Fed. Reg. 52697) would not be persuasive even if the Department's regulations did apply. As is evident from the context of the NPRM, application processing could have several aspects other than the payment of the fees. Additionally, even if the Department was allowing the statute to govern fees themselves, the NPRM merely notes that the Department is applying the current regulation (45 C.F.R. � 13.6(b) (2002) establishing a $75 per hour maximum) unless the statute requires changes. The statute does not require a change, that is, it does not require that a $125 rate must be applied.

The ALJ's analysis of the relevant statutory and regulatory provisions does not support an award of $125 for attorney's fees and expenses.

Conclusion

Based on the foregoing analysis, I reverse the ALJ's award of attorney's fees and expenses to St. Regis under EAJA at a rate of $125 per hour. I conclude that the appropriate rate as provided by the applicable IBIA EAJA regulation is $75 per hour.

This is the final determination of the Department in this matter.

Marc R. Hillson
Member, Departmental Appeals Board

1. Accordingly, I do not address the ALJ's analysis concerning how to resolve conflicts between a statute and a regulation.

2. Additionally, St. Regis also pointed to decisions by other administrative bodies as further support for its argument that the maximum EAJA rate should apply even though interim EAJA regulations provided for the lower, $75 rate. See St. Regis Br. at 2, citing Application Under the Equal Access to Justice Act - Carousel Development, Inc., ASBCA No. 50719, 2001-2 B.C.A. (CCH) P31,590 (2001); Staff Inc., Application for Attorney's Fees, AGCBA No. 98-152-10, 99-1 B.C.A. (CCVH) P30,260 (1999); and Application Under the Equal Access to Justice Act - Commercial Enterprises, Inc., ASBCA Nos. 47106, 50316, 2001-1 B.C.A. (CCH) P30907 (2000). We have examined each case cited by St. Regis. Other than establishing that the EAJA statute as amended establishes a maximum hourly rate for fee applications filed after March 29, 1996, there is no evidence that the facts of those cases are otherwise similar to the facts here.