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Sharkey v. Commissioner of Social Security

United States District Court, Seventh Circuit

June 21, 2013




This matter is before the Court on plaintiff’s Motion for Attorney’s Fees Under the Equal Access to Justice Act. (Doc. 37). Defendant filed a response in opposition at Doc. 40, and plaintiff filed a reply at Doc. 41.

Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(A), the Court shall award attorney’s fees and expenses to a prevailing party in a civil action against the United States, including proceedings for judicial review of agency action, unless the government’s position was substantially justified. The hourly rate for attorney’s fees is not to exceed $125.00 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.” §2412(d)(2)(A).

This case was remanded to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. §405(g). Plaintiff is, therefore, the prevailing party. See, Shalala v. Schaefer, 509 U.S. 292, 302 (1993). The Commissioner does not argue that her position was substantially justified so as to defeat plaintiff’s claim under the EAJA. She does, however, take issue with the hourly rate and the number of hours claimed by counsel.

As to the hourly rate, counsel asks the Court to award him $182.50 per hour for attorney time and $95.00 per hour for legal assistant time. Counsel argues that he is entitled to an increase from the statutory rate of $125.00 per hour because of an increase in the cost of living and a “special factor” within the meaning of §2412(d)(2)(A).

In Mathews-Sheets v. Astrue, 653 F.3d 560 (7th Cir. 2011), the applicable precedent, the Seventh Circuit explained:

If [counsel] points to inflation he still must show that it actually justifies a higher fee; for while it might seem obvious that a statutory price ceiling should be raised in step with inflation, to do that as a rote matter would produce windfalls in some cases. Inflation affects different markets, and different costs in the same market, in different ways. The framers of the Equal Access to Justice Act were right therefore not to create an entitlement to an inflation adjustment; the lawyer seeking such an adjustment must show that inflation has increased the cost of providing adequate legal service to a person seeking relief against the government.

Mathews-Sheets, 653 at 563.

The Court went on to explain that an adjustment in the hourly rate for inflation must be “justified by reference to the particular circumstances of the lawyer seeking the increase.” Ibid. at 563-564.

Plaintiff’s counsel seeks to be paid $182.50, a figure which is based on the Consumer Price Index for January, 2012, the month in which most of the work was done. He has provided the information required by Mathews-Sheets. He states that his office expenses such as rent, staff salaries, health insurance costs, legal research tools (Westlaw), and continuing legal education conferences have all increased in the relevant time period, as have basic office supplies. See, Doc. 37, p. 8.

The Commissioner ignores the fact that counsel provided the above information. She argues that counsel failed to present evidence of the prevailing rate for lawyers in the community in which this case was pending. The original motion was supported by affidavits of attorneys in Chicago and Wisconsin. Plaintiff remedied this by attaching an affidavit from an attorney in Southern Illinois to his reply, stating that counsel’s hourly rate for Social Security cases is $250.00 for out-of-court time.

The Commissioner’s response to the motion suggests that Mathews-Sheets requires that counsel must show both an increase in the cost of providing legal services and that, without an increase in the statutory rate of $125.00 per hour, competent counsel could not be found to handle the case. The Court does not read Mathews-Sheets that way.

The Commissioner’s position is based on one sentence from the case:

And so on remand the plaintiff’s lawyer will have to show that without a cost of living increase that would bring the fee award up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of social security benefits ...

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