United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                            October 5, 2006
                         FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk
                     Nos. 05-11287 & 05-11288
                         Summary Calendar


Phyllis W Yoes,
Judy L Haynes
                                           Plaintiffs-Appellants,

versus

Jo Anne B Barnhart,
Commissioner of Social Security
                                           Defendant-Appellee.



          Appeals from the United States District Court
                For the Northern District of Texas



Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:

     Appellants Yoes and Haynes challenge the district court’s

calculation of their award of attorneys’ fees under the Equal

Access to Justice Act.    We affirm.

     The district court awarded attorneys’ fees at $132.50 per

hour, the going rate in the San Angelo and Abilene Divisions of the

Northern District of Texas.     Appellants had requested attorneys’

fees at $152.61 per hour, the going rate in the Dallas Division.

Appellants contend that our decision in Baker requires all district

courts of the Northern District of Texas to apply a uniform rate

for calculation of attorneys’ fees, and that the district courts in

San Angelo and Abilene, by deviating from the Dallas rate, are
abusing their discretion.        Baker v. Bowen, 

, 1082 (5th

Cir.1988).

      The Equal Access to Justice Act vests the district courts with

discretion to arrive at a reasonable rate for attorneys’ fees based

on cost-of-living adjustments and other factors. 28 U.S.C. §

2412(d)(2)(A)(ii).         These     factors         are    market     based,    not

individualized, thus, as this court acknowledged in Baker, the

judge-by-judge exercise of rate-setting discretion had resulted in

“a multiplicity of conflicting views within the Dallas courts” and

“confusion and bewilderment among the bar and litigants.”                   

.    Concerned         with    this   seemingly    arbitrary

application of the EAJA’s factors, the Baker court remanded the

case to the chief judge for a single rate determination to be

applied “in all fee awards in the Dallas district courts.”                      

did not mandate rate uniformity across the entire

federal district however. Although rate fluctuations among federal

courts    serving   the   same    city       are    arbitrary,   the    same    rate

disparities between courts serving two different markets is more

than reasonable; indeed, it is expressly contemplated by the Act

itself.      Thus, the San Angelo division did act arbitrarily in

recognizing that San Angelo, when compared with Dallas, enjoys an

agreeably low cost of living.

      Appellants urge us to nevertheless adopt the Eighth Circuit’s

rule, which requires uniform cost-of-living adjustments throughout


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each district.      See Johnson v. Sullivan, 

, 505 (8th

Cir. 1990).      The Eight Circuit reasoned that “under ordinary

circumstances . . . the cost of living affects each litigant within

a judicial district to the same degree.”               

judicial

notice of the vast beauty of the Great Plains, which we share, and

of the natural wonders of the Missouri and Ozark Plateaus, which we

envy, yet, we are also mindful of the difference in population

density between      our   circuits.1        Because   the   Eighth   Circuit’s

reasoning applies in our Circuit with less force, we decline to

adopt their rule.

      Neither,    then,    do   we   agree   with   appellant’s   alternative

argument that, rate disparity aside, the fee of $132.50 per hour is

insufficient to secure adequate representation for San Angelo

claimants.     We review a district court’s attorneys’ fees award

under the EAJA only for abuse of discretion. 

(5th Cir.1988).        The district court considered and rejected

plaintiff’s request for a cost-of-living adjustment, recognizing

that the $132.50 rate, which is already $7.50 higher than the

statutory cap, adequately provides for representation throughout

the division.     As we have explained before, “[W]hile the statute

clearly allows an adjustment for changes in the cost of living, it



      1
        For example, there is a smaller cost-of-living discrepancy between Sioux
Falls, South Dakota and Watertown, South Dakota (the first and fourth largest
cities in the District of South Dakota), than between Dallas, Texas and Abilene,
Texas (the first and fourth largest metropolitan areas in the Northern District
of Texas).

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does not absolutely require it.” 

district

court’s order awarding attorney’s fees and costs is

     AFFIRMED.




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