Willoughby v. Astrue
Filing
33
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 5/14/2013. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AARON M. WILLOUGHBY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
No. 11-CV-7854
MEMORANDUM OPINION AND ORDER
Plaintiff
Michael
J.
Aaron
Astrue,
M.
Willoughby
Commissioner
filed
of
an
the
action
Social
against
Security
Administration (the “Commissioner”), seeking review of the denial
of his application for disability benefits.
cross motions for summary judgment.
The parties filed
On July 12, 2012, I denied
the Commissioner’s motion and granted Mr. Willoughby’s motion,
remanding the case to the Social Security Administration for
further
proceedings
consistent
with
my
opinion.
Now
Mr.
Willoughby seeks attorney fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. 2412(d)(2)(A)(ii), which I grant for the
reasons that follow.
1
I.
The
Equal
Access
to
Justice
Act
(“EAJA”),
28
U.S.C.
§
2412(b), provides that “a court may award reasonable fees and
expenses of attorneys, in addition to the costs . . . to the
prevailing party in any civil action brought by or against the
United States or any agency or official of the United States
acting
in
his
or
her
official
jurisdiction of such action.”
capacity
in
any
court
having
To prevail on a motion for fees
under the EAJA, “a party must show that (1) he was the prevailing
party;
(2)
the
Government’s
position
was
not
substantially
justified; (3) there existed no special circumstances that would
make an award unjust; and (4) he filed a timely and complete
application for fees.” Floroiu v. Gonzalez, 498 F.3d 746, 748
(7th Cir. 2007).
The Commissioner does not dispute that Mr.
Willoughby meets this standard and is entitled to an award of
fees.
Nor does the Commissioner claim that the number of hours
Mr. Willoughby’s counsel expended on his case was excessive.
The
parties’ only dispute is over Mr. Willoughby’s request for an
amount commensurate with his attorney’s hourly rate of $180.
Congress has provided a presumptive statutory ceiling for
the hourly rate that may be collected under the EAJA: “The amount
of fees awarded . . . shall be based upon prevailing market rates
for
the
kind
and
quality
of
the
2
services
furnished,
except
that . . . (ii) 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.” 28 U.S.C. § 2412(d)(2)(A).
This “rather
chintzy” fee-shifting statute set the $125 rate in 1996 as “a
presumptive ceiling.” Matthews-Sheets v. Astrue, 653 F.3d 560,
562 (7th Cir. 2011) (further noting that “a fee of $125 for legal
services rendered in 2009 in a social security disability appeal
seems awfully low.” Id. at 564).
To justify a higher rate, the
plaintiff must “point to inflation or some other special factor”
such as “the limited availability of qualified attorneys for the
proceeding
involved.”
Id.
at
563-64.
Here,
Mr.
Willoughby’s
attorney raises both special factors.
When pointing to inflation, district courts are not entitled
to presume inflation, even though the statutory maximum was set
in 1996:
If [an attorney] 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.
3
Id. at 563 (emphasis in original).
Thus, a blanket statement
that inflation justifies an increased fee will not suffice.
“An
inflation adjustment must, as we said, be justified by reference
to
the
particular
circumstances
of
the
lawyer
seeking
the
increase.” Id. at 563-64.
To
support
his
inflation-based
argument,
Mr.
Willoughby
offers the affidavit of his counsel, Ellen Hanson, which attaches
the local Consumer Price Index for 2011, which indicates that
indicating
that
the
$180.59
per
hour
reflects
adjusted for the increased cost of living.
the
rate
as
He argues “[t]hat
Index shows the cost of doing business in the United States.”
Mr.
Willoughby
objects
to
“personally”
documenting
that
his
counsel’s business expenses have increased because doing so would
require her to spend “hours going through a warehouse of receipts
and
expenditures
which
would
be
burdensome
and
beyond
[her]
competence in coming up with the result.”
Mr.
Willoughby’s
evidence
does
not
satisfy
the
Seventh
Circuit’s criteria for inflation-based adjustments. “An inflation
adjustment must . . . be based on the particular circumstances of
the lawyer seeking the increase.”
563.
Matthews-Sheets, 653 F.3d at
Mr. Willoughby fails to put forth any information about how
inflation affected his counsel’s practice.
Instead of citing the
rising cost of rent, for example, or the increase in wages his
4
counsel pays her clerical employees, Mr. Willoughby conflates the
two special circumstances enumerated in the statute, arguing in
support
of
his
inflation
argument
that
there
are
no
other
attorneys in the relevant geographic area willing to represent
parties like Mr. Willoughby.1
Although
Mr.
Willoughby’s
argument
is
insufficient
to
support his inflation adjustment, he makes a valid argument for
an upward adjustment on the ground that the case “require[d] for
competent counsel someone from among a small class of specialists
who are available only for [more than $125] per hour.” MatthewsSheets 653 F.3d at 562 (citations omitted) (original alteration).
In Matthew-Sheets, the court held that a party seeking a fee
increase could overcome the presumptive fee ceiling with evidence
that “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 565.
affidavits
of
his
counsel,
Ellen
Mr. Willoughby offers the
Hanson,
and
those
of
Ms.
Hanson’s law partner, John V. Hanson, and of her associate, Brian
D. Johnson. Ms. Hanson states that “[t]here is no other attorney
in Kankakee, Livingston, LaSalle, Grundy or Bureau Counties that
1
Although the two methods of justifying a fee increase are set forth in the
disjunctive under the EAJA, both parties appear to conflate the two,
proceeding as if Mr. Willoughby must show both that “inflation has increased
the cost of proving adequate legal service,” Matthews-Sheets, 653 F.3d at 563;
and that no competent attorney in the area would handle the case for less than
the amount requested in the fee petition. Id. at 565. The Seventh Circuit
recognizes that these are two separate justifications for a fee increase.
5
do District Court Social Security cases,” other than herself and
her
associate.
She
further
states
that
she
has
not
had
to
represent claimants at the $125 level, and that she would not be
willing to do so.
Mr. Hanson states that Ms. Hanson’s normal
hourly rate was $200 for the trusts and estate work that she
formerly practiced before dedicating herself to Social Security
Disability Practice.
federal
district
Mr. Johnson states that he is undertaking
court
cases
for
social
security
disability
claims, and that he would not be willing to proceed with these
matters at the hourly rate of $125: “I would expect to be paid in
2011 and 2012 at the hourly rate of $180.”
The Commissioner does not rebut this evidence but instead
argues that “[t]here is no reason why attorneys from Chicago or
other neighboring areas would not travel to these four counties.”
To this Mr. Willoughby respond that while attorneys from Chicago
might be willing to represent a person from Grundy County, they
would not do so for any less than they charge to represent a
person from Chicago.
And Chicago rates, Mr. Willoughby insists,
are well above the minimum, citing cites Claiborne v. Astrue, 877
F.Supp.2d 622, 628 (N.D. Ill. 2012) (awarding a Chicago lawyer
who practices in the area of social security benefits an upward
adjustment to $181.25).
In light of the low range of typical fee awards in these
cases, “the court should not demand proof that could be more
6
expensive to gather than the fees requested.
And because the
government could be ordered to pay those ‘fees on fees,’ that
result would not serve its interests either.” Gonzalez v. Astrue,
No. 10-899, 2012 WL 1633937, at *2 n. 1 (N.D. Ill. May 9, 2012).
Mr. Willoughby has come forward with evidence that there are no
attorneys available to represent him without the benefit of an
upward adjustment of the statutory ceiling.
not controverted this evidence.
request
for
attorneys’
fees
The Commissioner has
Accordingly, Mr. Willoughby’s
commensurate
with
his
counsel’s
hourly rate of $180.00 is granted.
II.
For the foregoing reasons, Plaintiff’s Motion for Attorney’s
Fees is granted in the amount of $7,386.60 plus an additional
$180 fee for preparation of the reply brief, for a total of
$7,566.60.
ENTER ORDER:
Dated: May 14, 2013
____________________________
Elaine E. Bucklo
United States District Judge
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