Image Convention Services, Inc. Image Internation-Al, Inc., And D.C. Enterprises, Inc.

422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Image Convention Services, Inc., Image Internation- al, Inc., and D.C. Enterprises, Inc. and Interna- tional Alliances of Theatrical Stage Employees and Moving Picture Operators , Local No. 631. Case 12-CA-10211(E) July 29, 1988 ORDER DENYING PETITION TO INCREASE MAXIMUM RATE OF ATTORNEY FEES BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Pursuant to Sections 102.124 and 102.146 of the National Labor Relations Board Rules and Regula- tions, on June 23, 1988, Image International, Inc. and its Attorney Charles Robinson Fawsett filed a petition to increase the maximum rate of attorney fees payable under the Equal Access to Justice Act (EAJA) from $75 per hour to rates of $95, $100, and $120 per hour for fees charged and paid be- tween July 1, 1982, and September 1, 1983.1 The petition alleges that such an increase is justi- fied on the grounds that the work performed by Fawsett was "highly specialized work in the field of labor relations law," that Fawsett was one of only approximately six attorneys in central Florida qualified to perform the work, and that the peti- I An application for fees and expenses incurred in the underlying unfair labor practice proceeding (288 NLRB 1036 (1988)) was filed simul- tioned-for rates are in accordance with rates charged by management labor relations attorneys in central Florida for similar work during the rele- vant period. Having duly considered the matter , we find that the petition should be denied . EAJA, 5 U.S.C. § 504(b)(1)(A), provides that attorney fees shall not be awarded in excess of $75 an hour "unless the agency determines by regulation that an increase in the cost of living or a special factor , such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee."2 The petition here does not allege that an in- crease in the cost of living justifies a higher fee. Nor does it identify a "special factor" within the meaning of the statute which would justify a higher fee. As recently indicated by the Supreme Court, the "special factor" exception was intended to be applied narrowly ; an increase is not justified under the exception merely because a distinctive knowledge or specialized skill would be useful, as opposed to needful (as in patent law), in litigating the case, because lawyers having such a useful knowledge or skill are in short supply, or because the prevailing market rate for the tendered legal services is higher than the maximum rate.3 Accordingly, as the petition fails to allege any basis permitted under the statute for an increase in the maximum rate, the petition is denied. taneously with the petition . By order dated June 27, 1988, the Board re - 2 See also Sec. 102 146 of the Board's Rules and Regulations. ferred the application to the administrative law judge for appropriate 8 See Pierce Y. Underwood, 56 U.S.L.W 4806, 4811-4812 (June 27, action. 1988) (interpreting identical provision in 28 U S C § 2412(d)(2)(A)) 290 NLRB No. 53