United States District Court, N.D. Illinois
February 2, 2004.
TRACY D. HOLLAND, Plaintiff
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District
MEMORANDUM OPINION AND ORDER
Presently before us is Plaintiff Tracy D, Holland's Application for
Attorney's Fees made pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412. For the reasons set forth below, we grant her
application and award fees and costs in the amount of $8,049.71,
Plaintiff Tracy D. Holland ("Holland") applied for and was denied
Disability Insurance Benefits in 2001. An Administrative Law Judge
("ALJ") affirmed the denial in June of 2002. Upon review, this court
found that the ALJ's opinion contained a substantial number of omissions
and errors that were material to Holland's disability determination. We
therefore granted Holland's motion to remand the matter to the Social
Security Administration for further proceedings. Holland now applies for
attorney's fees and costs incurred in connection with filing her appeal
and with preparing the present motion.
The Equal Access to Justice Act ("EAJA") provides that a party who
prevails against the United States may receive attorney's fees and costs
if certain conditions are met. 28 U.S.C. § 2412. A party seeking such
fees and expenses must demonstrate that: I) she filed a request for fees
within thirty days
of final judgment in the action; 2) that she was a "prevailing
party"; and 3) that the United Stales was not "substantially justified"
in the earlier action. Id., § 2412(d)(1)(B),
Holland has met all three requirements. First, she made a timely
request for fees. Second, a person is considered a prevailing party if,
as here, the action is remanded to the agency for further consideration.
Schutt v. Massanari, 2001 WL 1155253, *2 (N.D. Ill. Sep. 28,
2001), Third, the government bears the burden of proving that the
position of the United States in the earlier action was substantially
justified. See Jackson v. Chater, 94 F.3d 274, 278 (7th Cir.
1996). In this case, the Commissioner has not argued that the United
States was "substantially justified" in the earlier action. In light of
our earlier holding that the ALJ's opinion contained a substantial number
of material omissions and errors, we therefore find that the government's
position was not "substantially justified" within the meaning of the BAJA
and that an award of attorney's fees and costs is appropriate,
Holland has submitted a request for $8,273.46 in fees and costs. In
assessing the amount of attorney's fees, we must first consider whether
the rate proposed by Holland is reasonable. 28 U.S.C. § 2412(d)(2)(A).
The FAJA provides that "attorney fees shall not be awarded
in excess of $125 per hour unless the court determines that an increase
in the cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved,
justifies a higher fee." Id. Holland requests an adjustment of
the hourly rate provided by the EAJA based on an increase in the cost of
living since the enactment of § 2412(d)(2)(A) in 1996. Specifically,
she asks that the court grant an hourly rate of $ 146.25 for work
performed in 2002 and $147.50 for work performed in 2003. She bases her
cost of living adjustments on the "all items" figures for 2002 and 2003
listed in the Consumer Price Index. (Plaintiff's Application for Fees,
Ex. A.) Several courts in this district have accepted the use of the
Consumer Price Index as a basis for adjusting attorney's fees to
correspond with increases in the cost of living. See, e.g., Baker v.
Barnhart, 2003 WL 22715829, *2 (N.D. III. Nov, 17, 2003). We
accept Holland's proposed hourly rates for attorney's fees as
Although the Commissioner does not contest Holland's proposed rate for
attorney's fees,*fn1 she does argue that the 56.85 hours devoted to the
preparation of "three briefs, totaling 48 pages" is an unreasonable
amount of time to spend on a disability case, (Plaintiff's Reply at 2.)
We cannot agree. The attorneys (with the permission of this court) filed
an additional memorandum in the case because they felt it was necessary
to respond to several of the arguments made by the Commissioner in her
The Commissioner next claims that attorneys Frederick J. Daley, an
experienced disability benefits lawyer, and James Commerford, a more
junior attorney, over-billed by spending 3.5 hours working together on
the case. She argues that billing the time spent working together was
improper because "the EAJA statute is not designed to subsidize the
training and development of new attorneys," (Def's Response at 3) (citing
Dunn v. Shalala, 92 C 4090, 1995 WL 23116, *7 (N.D. Ill. Jan.
19, 1995). Although it may be improper to bill time for two attorneys
where the work performed is duplicative, the billing submissions provided
by Holland in this case show that Daley edited Commerford's work and made
suggestions, which Commerford then spent time incorporating into the
drafts. We find this joint effort appropriate and proper in this case.
We do agree with the Commissioner's contention, however, that it was
unreasonable for Holland's attorneys to bill the Commissioner for time
spent preparing a motion for extension of time, See Burr v.
Bowen, 782 F. Supp. 1285, 1290 (N.D. Ill. 1992), We therefore will
deduct the 0.5 hours that it took to prepare that motion from our final
The Commissioner's final argument is that the $ 100 per hour rate
charged by Holland's attorneys for paralegal services was unreasonable.
Asserting that the services performed by the paralegals were "clerical"
in nature, the Commissioner requests that we award only $25 per hour for
their work. See Taylor v. Barnhart, 2002 WL 31654944 (N.D.III.
Nov. 22, 2002) (compensating paralegals for clerical work at the rate of
$25 per hour). The billing submissions provided by Holland demonstrate,
however, that the three hours of work done by the paralegals in this case
were not clerical in nature. The submissions show that they performed the
types of tasks normally conducted by paralegals and not clerical staff,
including preparing and submitting court documents, serving process, and
discussing the case with attorneys. However, we agree that the rate of
$100 per hour, billed by Holland's attorneys, is high for paralegal work.
The only authority that Holland cites to support her purported $ 100 per
hour paralegal rate is the so-called Laffey Matrix, which
recommends a rate of $100 per hour for paralegals working in Washington,
D.C. Although the Laffey Matrix has been accepted by the
district courts in Washington, D.C., it has not been adopted in this
jurisdiction. We believe that the rate of $50 per hour is reasonable for
the paralegal services provided in this case and will so order.
For the reasons listed above, we find that Holland is entitled to a fee
award in the amount of $8,049.71. Specifically, we award 1) $826.31 for
attorney's fees incurred during 2002 (5.65 hours limes an hourly rate of
$1.46,25); 2) $7,035,75 for attorney's fees incurred during 2003 (47,7
hours times an hourly rate of $147.50); 3) $150 for paralegal fees (3
hours time $50 per hour); and 4) copying costs of $37.65 (251 pages at
$0.15 per page). It is so ordered.