which required substantial research. It is clear that the law student carefully reviewed the administrative record, which contains more than 500 pages, before he wrote the memorandum. While it is possible that a more experienced attorney could have produced the memorandum in less time, the law student's relative inefficiency is reflected in his hourly rate. Moreover, the CLSI attorney who litigated the merits of this case spent 16 hours on the second motion for summary judgment. His normal billing rate is $ 155 per hour. The memorandum he wrote is 22 pages long and draws in part on the first memorandum, which the law student wrote. Thus, it was not excessive for the law student to spend 41.5 hours on the first memorandum, and the court will calculate the award on that basis.
Although there is no request for interest in the plaintiff's motions or memoranda of law, the proposed orders
accompanying the motions contain the sentence, "Interest shall accrue from the date of this Order if all fees are not paid within 30 days of this Order." The Secretary objects to this requirement. The EAJA is a limited waiver of sovereign immunity, Berman v. Schweiker, 713 F.2d 1290, 1300-01 (7th Cir. 1983), and therefore must be construed strictly. Library of Congress v. Shaw, 478 U.S. 310, 106 S. Ct. 2957, 2963, 92 L. Ed. 2d 250 (1986); Lehman v. Nakshian, 453 U.S. 156, 160-61, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981). The EAJA provides for interest on an award only when the United States appeals an award and the award is affirmed at least in part. 28 U.S.C. § 2412(f). There is no statutory provision for interest if the government does not pay the award within thirty days. On the other hand, the government does retain use of the money. Since the court does not need for resolve the issue now, it will cross the interest bridge when it comes to it.
D. The Plaintiff's Reply Memorandum
The plaintiff also seeks fees for her attorney's work on the reply to the defendant's memorandum in opposition to the initial motion for attorney's fees. A party may recover fees incurred in litigating a fee application only when the government's opposition to an award is not substantially justified. Taylor v. Heckler, 835 F.2d 1037, 1039 (3d Cir. 1987); Russell v. Heckler, 814 F.2d 148, 155 (3d Cir. 1987); Lee v. Johnson, 799 F.2d 31, 39 (3d Cir. 1986). The plaintiff's reply memorandum addresses only the propriety of the law student's hourly billing rate and the number of hours he worked on the first motion for summary judgment. Thus, the court must determine whether the Secretary's opposition to the fees requested for the law student's time was substantially justified.
The Secretary bears the burden of proving that his position was substantially justified, which means more than merely reasonable. Taylor, supra, 835 F.2d at 1041; Russell, supra, 814 F.2d at 153. To carry his burden, the Secretary must demonstrate (1) a solid and well-founded basis in truth for the facts alleged; (2) a solid and well-founded basis in law for the theory he propounds, and (3) a solid and well-founded connection between the facts alleged and the legal theory advanced. Taylor, supra, 835 F.2d at 1042. Accord Coup v. Heckler, 834 F.2d 313, 319 (3d Cir. 1987); Russell, supra, 814 F.2d at 152-53; Stokes v. Bowen, 811 F.2d 814, 816 (3d Cir. 1987); Lee, supra, 799 F.2d at 38; Washington v. Heckler, 756 F.2d 959, 961 (3d Cir. 1985). There are no facts in dispute, so the Secretary's objections are based solely on legal arguments. Consequently, the Secretary must demonstrate that his argument presented an unsettled or close question of law. Coup, supra, 834 F.2d at 319; Lee, supra, 799 F.2d at 38.
The Secretary's argument with respect to the law student's hourly billing rate did present, until now, an unsettled question of law. As the court has already noted, the Secretary urged the court to adopt the holding in Ashton v. Pierce, 580 F. Supp. 440 (D.D.C. 1984). Although several cases cast doubt upon that holding, the court has not found any case that is in direct conflict with it. Thus, there was a reasonable basis in law for the Secretary's theory. The mere fact that the court rejected the Secretary's argument does not mean that it did not present an unsettled or close question of law. Lee, supra, 799 F.2d at 40.
The Secretary's position with respect to the number of the law student's hours, however, was not substantially justified. The Secretary did not dispute that the law student spent 41.5 hours on the first motion for summary judgment. Nor did the Secretary introduce any evidence to support his argument that the law student's time was excessive. An unsupported allegation is not enough to meet the required burden of proof.
Since the court has concluded that one of the Secretary's positions was substantially justified, the court must limit the award to those fees the plaintiff's attorney incurred in addressing the other issue. Washington Urban League v. Fed. Energy Reg. Comm'n, 743 F.2d 166 (3d Cir. 1984); Dougherty v. Lehman, 711 F.2d 555, 560 (3d Cir. 1983); Goldhaber, supra, 698 F.2d at 197-98. The plaintiff's attorney spent three hours preparing the reply memorandum. Most of that memorandum addresses the issue of the law student's hourly rate. Based upon the representations at the hearing, the court finds that the plaintiff's attorney spent fifteen minutes on the issue of the number of the law student's hours. Thus, the court will award an additional $ 23.25 (0.25 hours multiplied by $ 93/hour) for the reply memorandum.
For the foregoing reasons, the court will direct the Secretary to pay the plaintiff's counsel $ 3427 in attorney's fees pursuant to 28 U.S.C. § 2412(d)(4). In addition to the uncontested fees incurred in writing the second motion for summary judgment and the application for attorney's fees, this amount includes the fee for the law student's 41.5 hours of work at the rate of $ 40 per hour and $ 23.25 for the plaintiff's reply memorandum.
An appropriate order follows.
AND NOW, this 20th day of May, 1988, upon consideration of the Plaintiff's Motion For Attorney's Fees To Community Legal Services, Inc. and the government's response, the Plaintiff's Supplemental Motion For Attorney's Fees To Community Legal Services, Inc., and the entire record, and after a hearing, it is ORDERED that the motions are GRANTED in part and DENIED in part.
It is further ORDERED that the Secretary of Health and Human Services shall pay attorney's fees to Community Legal Services, Inc. in the amount of $ 3427.00 pursuant to 28 U.S.C. § 2412(d).