Girondi et al v. Astrue

Filing 39

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 9/10/2012:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHY GIRONDI, o/b/o
A.G., a minor,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No: 09 C 3623
Magistrate Judge Jeffrey Cole

MEMORANDUM AND ORDER
The plaintiff, Cathy Girondi, seeks an award of attorney’s fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, arguing that the Commissioner’s
position in denying her application for Disability Insurance Benefits was not substantially
justified. She asks for an award of $7,924.06 for 45 hours of work. For the following
reasons, the petition is granted.
The EAJA provides that a district court may award attorney’s fees where (1) the
plaintiff is a “prevailing party”; (2) the government’s position was not substantially
justified; (3) no “special circumstances make an award unjust”; and (4) the fee
application is submitted to the court within 30 days of final judgment and is supported by
an itemized statement. 28 U.S.C. § 2412(d)(1)(A), (B); Golembiewski v. Barnhart, 382
F.3d 721, 723-24 (7th Cir. 2004). Costs are available under 28 U.S.C. § 2412(a)(1).
Here, by virtue of the remand of his case, the plaintiff is the prevailing party. Shalala v.
Schaefer, 509 U.S. 292, 302 (1993). There are no “special circumstances” alleged. See
Golembiewski, 382 F.3d at 724; United States v. Hallmark Const. Co., 200 F.3d 1076,
1079 (7th Cir. 2000). The plaintiff’s application was timely filed and is supported by an

itemized statement. As to the final point – whether the government’s position was
substantially justified – the Commissioner bears the burden of proof. Scarborough v.
Principi 541 U.S. 401, 416 (2004); Golembiewski, 382 F.3d at 724. Here, by not arguing
the point, the Commissioner has conceded that the government’s position was not
substantially justified.
The issue, then, is the amount of the award. The plaintiff’s request for an award
of $7,924.06 covering 45 hours of lawyering is certainly not out of line with awards in
Social Security disability cases.

See, e.g., McCristal v. Astrue, 2012 WL 698365

(N.D.Ill. 2012)($9,034.73 for 47.8 hours); Walker v. Astrue, 2012 WL 527527 (N.D.Ill.
2012)($7,684.94 for 43 hours); Eakin v. Astrue, 2011 WL 6156766 (N.D.Ill.
2011)($21,733.30); Anderson v. Astrue, 2011 WL 5244358 (N.D.Ill. 2011)($8,185.90);
Spaulding vs. Astrue, 2011 WL 1042580 (N.D.Ill. 2011)($9,817.50 for 56.4 hours);
Jablonski v. Astrue, 2011 WL 824601 (N.D.Ill. 2011)($9,651.25 for 54.6 hours).

Still

the government finds fault with the time plaintiff’s counsel spent on several tasks, which
are described thusly in the government’s brief:
in May, June, September, October, and November 2009, Plaintiff spent a
total of four hours on the following tasks: letter to claimant, telephone call
from claimant, letter to claimant, receipt and review of pauper’s petition
from claimant, telephone call to claimant, prepare complaint for district
court appeal, prepare documents for district court appeal, file district court
appeal online, telephone call to district call, telephone call from district
court, receipt and review of district court notice, and receipt and review summons served. . . . A total of four hours, resulting in $704.l4 in fees
spent in initiating this civil action is unreasonable and excessive.
(Defendant’s Response, at 3). The government adds that “much of the work performed
on these tasks could easily have been performed by clerical staff” and that plaintiff’s

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counsel ought to have described the nature of her phone conversations. (Defendant’s
Response, at 4).
The government also has problems with another slate of billing entries:
Plaintiff’s attorney also seeks fees for such tasks as receipt and review of
district court correspondence (1/13/10), filing consent to the magistrate
judge online (1/15/10), a telephone call from the district court clerk
(1/26/10), receiving case reassigned to Magistrate Judge Denlow [sic]
(02/03/10), telephone call from claimant (2/25/10), receipt, review and
docketing of the district court briefing schedule (7/23/10), faxes and
several telephone calls to Assistant Regional Counsel Cynthia Freburg
(8/04/10, 09/09/10, 09/10/10, 09/13/10, 9/14/10), telephone calls from and
to claimant (9/29/10), letter to claimant (11/18/10), receipt and review of
papers from claimant (11/23/10), filing reply brief online (11/24/20),
receipt and review of district court order (12/01/10), telephone call from
claimant (12/01/10), receipt and review of order district court (12/06/10),
and receipt and review of district court action (04/01/11).

(Defendant’s Response, at 5-6). The government again complains that the entries are not
adequately documented or were clerical in nature.
The government’s first objection is that counsel took four hours for two letters,
two phone calls with a client, two phone calls with the district court, an IFP petition, a
complaint, and review of a couple of notices. The government has a point – to an extent.
It should not take a half-hour to file a three-page complaint online, and plaintiff offers no
explanation for why it did. But a phone call to consult with a client certainly could, and
it could also reasonably take fifteen minutes to prepare a letter. It would seem that the
government’s problem with many of the entries in plaintiff’s counsel’s billing statement
are the product of the practice of billing in quarter-hour increments. That practice is not
forbidden and is permissible. See the extensive discussion in Schulten v. Astrue, 2010
WL 2135474, *2 (N.D.Ill. 2010). See also Welsh v. Halter, 2004 WL 1595249, *3
(N.D.Ill. 2004); Willis v. Barnhart, 2002 WL 31779907, *3 (N.D.Ill. 2002); Harper v.

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Massanari, 2002 WL 1998302, *2 (N.D.Ill.2002); Johnson, on Behalf of Johnson v.
Shalala, 1994 WL 445090, *6 (N.D.Ill.1994); Luciano v. Sullivan, 1990 WL 207375, *1
(N.D.Ill.1990).
The Commissioner has also approved that method of billing. Schulten, 2010 WL
2135474, *5; POMS GN 03930.020(B)(3)).

The POMS is the Social Security

Administration’s Programs Operations Management Systems. The POMS is a primary
source of information used by Social Security employees to process claims for Social
Security benefits. https://secure.ssa.gov/apps10 /poms.nsf/aboutpoms. Under the topic
of petitions for fees for services provided in proceedings before the Social Security
Administration, it gives examples of what are deemed proper entries in a fee petition,
which clearly allow for quarter-hour-increment billing. So, these hours will be allowed,
with the exception that the half-hour entry for filing the complaint will be reduced to a
quarter hour.
As for entries being inadequate, the POMS undermines this argument as well. It
provides examples of acceptable entries such as “Meeting with client” or “Telephonic
calls with client and claims representative.” POMS GN 03930.020(B)(3). The entries in
plaintiff’s petition are certainly along these lines. There is no requirement that counsel
document the content of telephone calls. One may reasonably assume that the calls relate
to the subject matter of the litigation.
The government also suggests that much of the work plaintiff’s counsel billed for
could be performed by clerical staff. It does not specify which tasks these are, but asks
for an across-the-board reduction by half and a second reduction by two-thirds.
(Defendant’s Response, at 4, 6). How the government arrived at these percentages is

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unexplained, and thus rejected. Moreover, the suggested reductions are unreasonable and
utterly unacceptable. They would leave successful counsel with the paltry sum of $1300
as a fee in a case in which the plaintiff prevailed. Moreover, as noted, the requested fee
is well within the norm. Judge Posner’s rhetorical question regarding a $6625 award:
“Can a contested social security case really be litigated to judgment in a district court at a
cost in legal fees of so minute an amount?” Mathews-Sheets v. Astrue, 653 F.3d 560, 564
(7th Cir. 2011), is a sufficient rebuttal to the government’s requested reductions.
Under the Local Rules, the party opposing a fee award must specify the entries it
finds excessive.

Local Rule 54.3(d)(5).

The government hasn’t done that in this

instance, instead generalizing about certain types of tasks and, even those generalizations
do more to undermine the government’s position than enhance it.

Surely client

consultation and correspondence are not clerical tasks, but that is the impression the
government’s brief gives. (Defendant’s Response, at 4, 6). As for review of court orders,
at some point, attorneys must familiarize themselves with items like briefing schedules.
After all, as the Seventh Circuit stressed in United States v. Golden Elevator, Inc., 27
F.3d 301, 302 (7th Cir. 1994), “[i]gnoring deadlines is the surest way to lose a case. Time
limits coordinate and expedite a complex process; they pervade the legal system, starting
with the statute of limitations. Extended disregard of time limits (even the nonjurisdictional kind) is ruinous. ‘Lawyers and litigants who decide that they will play by
rules of their own invention will find that the game cannot be won.’”
The government’s next argument has more traction. The plaintiff requests an
inflation increase of EAJA’s statutory hourly rate of $125, see 28 U.S.C. §2412(d)(2)(A)
to $176.09. Plaintiff submits that she is entitled to an increase in the statutory rate due to

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the increased cost of living since the statutory rate was set forth. Relying on United
States Department of Labor statistics for the Chicago-Gary-Kenosha area, she argues that
the proper rate should be $176.09 per hour. The government does not object to a cost-ofliving increase, see Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008)( awarding
government’s conceded inflationary rate), but argues that it should be geared to when the
plaintiff’s counsel was doing the work, not when the work was completed. In other
words, the government proposes a month-by-month adjustment rather than one
adjustment for the entire case.
It’s a valid point. Cost-of-living adjustments must be made for the period the
work was performed. Tchemkou, 517 F.3d at 512; Marcus v. Shalala, 17 F.3d 1033,
1040 (7th Cir. 1994). But not on a monthly basis. “[F]ees incurred in a particular year
must be indexed using the cost of living multiplier applicable to that year, and so on for
each year in which fees were incurred.” Marcus, 17 F.3d at 1040. Accordingly, the
plaintiff shall provide a new petition calculating the inflationary rate for the years the
work was performed – 2009-2011. Because this was the law well before she began work
on this case, and should have guided her calculations to begin with, she is not entitled to
a fee award for the time spent in this recalculation.
One further point on adjustments for inflation. It’s an academic point here, given
the government’s concession that a cost-of-living adjustment is appropriate, but it should
be noted that the Seventh Circuit has stated it’s not enough to attach an inflation statistic
chart to an EAJA petition and ask for a cost-of-living increase:
The Equal Access to Justice Act does not authorize an award of the
prevailing hourly rate, as such, unless it is less than $125 an hour. For that
matter it doesn't authorize an award of $125 per hour, or even $125 plus
inflation. The $125 rate is a presumptive ceiling; to justify a higher rate

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the plaintiff must point to inflation or some other special factor. If he
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 v. Astrue, 653 F.3d 560, 563 (7th Cir. 2011)(Posner, J.). And so, a
“plaintiff's lawyer [has] to show that without a cost of living increase that would bring
the fee award up to $17[6] per hour, a lawyer capable of competently handling the
challenge that his client mounted to the denial of social security disability benefits could
not be found in the relevant geographical area to handle such a case.” Id. at 563. In other
words, the allowable rate is not the inflation-adjusted rate or even the prevailing market
rate, but apparently the least expensive rate charged by a competent attorney in the same
area for the same type of work.
The opinion in Matthews-Sheets does not explain how a plaintiff would go about
proving that no competent lawyer in the area would handle the case for less than the costof-living adjusted amount sought by the fee petition. It’s hard to prove a negative, and
since a lawyer’s unsupported affidavit is generally insufficient to establish market rates,
Harper v. City of Chicago Heights, 223 F.3d 593, 604 (7th Cir.2000), it is certainly not
clear whether the attorney seeking a cost of living adjustment could make the case out by
himself. Certainly, an affidavit from the applicant that merely posits that no such lawyer
exists would be insufficient.

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Market rates in this area are generally shown by affidavits from a colleague or
competitor in the relevant market who is familiar with market rates in the relevant locale.
See Johnson v. GDF, Inc., – F.3d –, –, 2012 WL 456484 (7th Cir. 2012)(best evidence of
market rate is attorney’s actual billing rate; next best evidence is rates of similarly skilled
attorneys in the relevant market); Pickett v. Sheridan Health Care Center, 664 F.3d 632,
640 (7th Cir. 2011)(presumptive reasonable rate show by what attorney actually charges
and prevailing rates in the community); Gautreaux v. Chicago Housing Authority, 491
F.3d 649, 659 (7th Cir. 2007)(“The market rate is the rate that lawyers of similar ability
and experience in the community normally charge their paying clients for the type of
work in question.”).1 Presumably, affidavits from those lawyers knowledgeable about
market rates attesting to the fact that no competent attorney in the relevant geographic
market would take a social security for less than the cost-of-living adjusted amount
sought by the plaintiff’s counsel ought to suffice – so long as the affiant could explain
how he or she came to that conclusion. Without that showing, the affidavit may well not
pass muster.
Here, the plaintiff’s attorney has filed an affidavit that would seem to fall short of
what the court in Mathews-Sheets required. She does not rule out the possibility that a
competent attorney could not be found in the area for less than $176 per hour. In fact,

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In Social Security disability benefits cases, the fee the plaintiff’s attorney receives is, invariably,
an EAJA fee award, so it would be difficult for her to say that the rate she bills is reasonable because
it is what their client is willing to pay. See Cintas Corp. v. Perry, 517 F.3d 459, 469–70 (7th
Cir.2008)(“best evidence of whether attorney's fees are reasonable is whether a party has paid
them.”); Jeffboat, LLC v. Director, Office of Workers' Compensation Programs, 553 F.3d 487, 491
(7th Cir. 2009)(Seventh Circuit’s “preference [is] for awarding attorneys’ fees that are commensurate
with what an attorney would otherwise have earned from paying clients.”).

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she says her own rates vary from $50 per hour to $300 per hour.2 But again, that is not a
concern in this instance.
Finally, the plaintiff requests that any fee award be paid directly to her attorney.
As the government points out, however, an EAJA fee is payable to the litigant, not her
attorney, and is subject to an offset for any pre-existing debt the litigant might owe the
United States. Astrue v. Ratliff, – U.S. –, –, 130 S.Ct. 2521, 2526-27 (2010). MathewsSheets interpreted Ratliff as suggesting that, “if there is an assignment, the only ground
for the district court’s insisting on making the award to the plaintiff is that the plaintiff
has debts that may be prior to what she owes her lawyer.” Mathews-Sheets, 653 F.3d at
565. When there is no indication of such a debt, the court cannot “ignore the assignment
and order the fee paid to [the plaintiff].”

653 F.3d at 565-66.

Here, there is an

assignment, but no indication of any debt. Accordingly, the award shall be made directly
to plaintiff’s counsel.
CONCLUSION
The plaintiff’s petition for an award of fees under EAJA [#32] is GRANTED,
with the award covering 44.75 hours and provided that plaintiff files a supplement as to
the amount she seeks based on the cost of living increases on a yearly basis as stated in

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Plaintiff’s counsel also avers that, in her experience, “a substantial number of [social security] cases
result in a reversal of the final administrative decision or in a remand to the Commissioner . . . .” In
other words, based on her personal experience, the prospects for success are good. Yet, she
somewhat inconsistently goes on to suggest that the success rate is a factor that inhibits attorneys
from taking Social Security cases. (Plaintiff’s Reply, Ex. C).

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this opinion. The award shall then be made to the plaintiff rather than her attorney.

ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: 9/10/12

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