The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Last December, the Court issued a Memorandum Opinion and Order
reversing the Commissioner's decision denying Gloria Barrientos' claim
for Disability Insurance Benefits, and remanding the matter for the sole
purpose of awarding benefits. See Barrientos v. Barnhart, No. 00 C 7407,
2003 WL 23305836 (N.D. Ill. Dec. 19, 2003). The Court took the relatively
drastic step of reversing the Commissioner outright, in large part,
because Ms. Barrientos' claim had already been remanded twice from the
district court to the Commissioner, and three times from the Commissioner
to the ALJ, Having determined that the evidence in the record "yields
only one possible conclusion" that Ms. Barrientos was disabled the
Court found that further remand would have served only to delay the
inevitable award of benefits to a woman who had already been waiting for
almost fifteen years.
Shortly thereafter, counsel for Ms. Barrientos petitioned the Court for an award of attorney's fees and costs under the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The EAJA "authorizes
the payment of fees to a prevailing party in an action against the United
States; the Government may defeat this entitlement by showing that its
position in the underlying litigation `was substantially justified.'"
Scarborough v. Principi, ___ S.Ct. ___, No. 02-1657, 2004 WL 938027, at
*4 (May 3, 2004) (citing 28 U.S.C. § 2412(d)(1)(A)). A position is
substantially justified if it was "grounded in `(1) a reasonable basis in
truth for the facts alleged; (2) a reasonable basis in law for the theory
propounded; and (3) a reasonable connection between the facts alleged and
the legal theory advanced.'" United States v. Hallmark Construction Co.,
200 F.3d 1076, 1080 (7th Cir. 2000)(quoting Phil Smidt & Son, Inc. v.
NLRB, 810 F.2d 638, 642 (7th Cir. 1987)).
As explained, the Court determined that the record evidence allowed for
"only one possible conclusion: given her limitations, age and education,
Ms. Barrientos was incapable of performing any work in the national
economy. . . ." Barrientos v. Barnhart, No. 00 C 7407, 2003 WL 23305836,
at *1 (N.D. Ill. Dec. 19, 2003). In light of this, the Government would
be hard pressed to show that its position, which was consistently
predicated on the opposite conclusion, was substantially justified.
Indeed, the Government has not met its burden in this regard. The Court,
therefore, finds that an award is appropriate under the EAJA. This conclusion
is bolstered by the simple fact that it would be an outrage, from a
policy perspective, to turn counsel away after everything he endured to
achieve what can only be described as a long overdue, wholesale victory
for his client. See Hallmark, 200 F.3d at 1080 (recognizing that
a fee award under the EAJA also involves "a certain element of policy".
Having decided that an award of fees is appropriate in this case, the
Court must consider whether counsel should be permitted to recover fees
and costs incurred in connection with Barrientos v. Apfel, No. 97 C
2620, in addition to the fees and costs incurred in connection with this
case. In that earlier case, Ms. Barrientos "prevailed" in the sense that
the court remanded the matter to the Commissioner for further
proceedings. Her attorney the same attorney involved in this case
applied for an award of fees and costs under the EAJA, and Judge Shadur,
to whom the case was assigned, denied the application. In doing so, he
noted that the favorable result had obtained, not because of anything
Ms. Barrientos' attorney had done, but because the Government, "as a
matter of fairness (not really as a matter of law)," voluntarily agreed
to remand the case. See Barrientos v. Apfel, No. 97 C 2620, 1998 WL
245995, at *1 (N.D. Ill. May 5, 1998). Judge Shadur denied the
application because, under these circumstances, an award would have been
unjust. He also noted that, although he had not been called upon to pass on the merits of
the arguments raised on appeal, the Government's position "appear[ed] on
initial analysis to satisfy the `substantially justified' test."
Id. at *2.
Before closing, Judge Shadur noted that, if Ms. Barrientos' case made
it back to the district court, and if counsel could demonstrate that his
efforts in Judge Shadur's case "demonstrably lessened" the required
expenditure of effort in the new case, "it might perhaps prove
appropriate for the court's ruling on any EAJA application at that time to
take into account the services rendered in this action for which no fees
are now being awarded." Id. Based on this language, counsel asks the
Court to award fees incurred in both cases.
The Court agrees that Judge Shadur, in denying the EAJA fee petition in
the earlier case, left open the possibility that counsel could recoup
some or all of the fees and costs incurred in his case. But his opinion
makes clear that, in his view, the Government had handled itself in that
case in a reasonable indeed, a magnanimous fashion. Given the tenor
and content of his opinion, the Court is unwilling to grant counsel the
windfall he seeks. Moreover, counsel's argument that the work done in the
earlier case saved significant time and effort in this case rings
somewhat hollow, given that the time spent briefing the issues in the two
cases appears to be roughly the same. Finally, the Court turns to the question of the amount of the award.
Counsel argues that the appropriate rates for attorney time are
$140.00/hour for work performed in 2000, $143.75/hour for work performed
in 2001, $146.25/hour for work performed in 2002, and $148.75/hour for
work performed in 2003 and 2004; for law clerks, counsel argues that
$100/hour is the appropriate rate. The Government does not challenge
these rates, and the Court finds them to be reasonable.
Additionally, after reviewing the bills submitted by counsel, the Court
finds that the time spent pursuing this case was reasonable; indeed, the
Government does not argue otherwise, it merely points out a mistake
counsel made in computing the total time to be reimbursed. The Court
finds that the amount of time counsel and his law clerks reasonably spent
on this case was 85.15 hours. Thus, the Court will award counsel for Ms.
Barrientos fees and costs in the amount of $11,711.45. This amount
(1) attorney's fees in the amount of $11,495.45, comprised of
$392.00 for 2000 (2.8 hours × $140.00),
$1,674.69 for 2001 (11.65 hours × $143.75),
$2,325.38 for 2002 (15.9 hours × $146.25),
$3,540.25 for 2003 (23.8 hours × $148.75),
$1,413.13 for 2004 (9.5 hours × $148.75), and $2,150.00 in law clerk fees (21.5 hours × $100.00);
(2) copying costs in the amount of $66.00 (440 × 15$); and
(3) the $150.00 filing fee.
For the reasons set forth above, the application for fees and costs
filed by counsel for Ms. Barrientos is granted. The Court awards fees and
costs under the EAJA in the amount of $11,711.45.
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