Turner v. Astrue

Filing 36

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 1/6/2015. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARTHA TURNER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 12 CV 10229
Magistrate Judge Young B. Kim

January 6, 2015

MEMORANDUM OPINION and ORDER
Before the court is Plaintiff Martha Turner’s motion for fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. §§ 2412(a), (d).

Turner seeks

$12,133 in fees. For the following reasons, Turner’s motion is granted:
Background
Turner applied for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) benefits on December 12, 2007, alleging that she became
disabled on September 8, 2007, from a back injury “resulting from being hit by a
large object.” (See Administrative Record (“A.R.”) 83, 86.) On September 8, 2009,
an administrative law judge (“ALJ”) determined that Turner was not disabled,
(id. at 39-49), and the Appeals Council subsequently denied Turner’s request for
review, (id. at 3-8), rendering the ALJ’s decision the final decision of the
Commissioner. Turner then sought judicial review, (R. 1, Compl.), and this court
granted her motion for summary judgment and remanded the case for further
proceedings. (R. 28.)

As a “prevailing party,” Turner now seeks an award of $12,1331 in fees under
the EAJA. (R. 30, Pl.’s Mot. at ¶ 11.) Turner’s request reflects 64 attorney hours
billed at a rate of $187.50 per hour, plus 1.4 hours of legal assistant time billed at a
rate of $95 per hour. (Id.) The government does not object to Turner’s entitlement
to her fees as a prevailing party, the billing of the legal assistant’s time, or the total
number of hours for which Turner seeks compensation. (See R. 33.) However, the
government opposes Turner’s request, arguing that she has not proven facts that
would allow her to exceed the statutory rate-cap of $125 per hour for attorney time.
(Id. at 2-5.)
Analysis
According to the EAJA, an award of attorney fees “shall be based upon
prevailing market rates for the kind and quality of the services furnished, except
that . . . attorney fees shall not be awarded in excess of $125.00 per hour unless the
court determines that an increase in the cost of living . . . justifies a higher fee.” 28
U.S.C. § 2412(d)(2)(A)(ii); Bias v. Astrue, No. 11 CV 2247, 2013 WL 615804, at *1
(N.D. Ill. Feb 15, 2013). Because the EAJA compensation arrangement was last
modified in 1996, the Seventh Circuit recognizes that “given the passage of time
since the establishment of the hourly rate, a cost-of-living adjustment is
warranted.” Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008). But the
EAJA does not automatically entitle any party to a cost-of-living adjustment, and no
Turner’s original request sought $11,701.75 in fees, (R. 30, Pl.’s Mot. at ¶ 11), but
because her attorney spent more time replying to the Commissioner’s opposition,
she seeks additional fees to cover 2.3 additional attorney hours, (R. 34, Pl.’s Reply at
4-5).
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such entitlement is presumed by the courts. Matthews-Sheets v. Astrue, 653 F.3d
560, 563 (7th Cir. 2011).
The leading case on EAJA fees in this circuit is Matthews-Sheets, in which
the Seventh Circuit explained that “[i]nflation affects different markets, and
different costs in the same market, in different ways.” Id. at 563. After MatthewsSheets, it is incumbent on the party seeking fees to show that “inflation has
increased the cost of providing adequate legal service to the person seeking relief
against the government.” Id. But the Seventh Circuit has not laid out a particular
method by which a lawyer must demonstrate that inflation has increased the cost of
legal services. Some courts have required the prevailing party to show both that
inflation has increased the cost of adequate representation and that no competent
counsel was willing to take the case at the statutory rate. See, e.g., Oatis v. Astrue,
No. 10 CV 6043, 2012 WL 965104, at *1 (N.D. Ill. Mar. 20, 2012). Others have
recognized that a showing of either inflation or lack of competent counsel is
sufficient to justify a rate increase under the EAJA. See, e.g., Sommer v. Colvin,
No. 11 CV 50318, 2014 WL 3866254, at *3 n.2 (N.D. Ill Aug. 6, 2014).
This court follows the majority approach in this circuit and requires a
showing of only one of the two factors—inflation or lack of competent counsel—to
justify a rate increase. See Cobb v. Colvin, No. 11 CV 8847, 2013 WL 1787494, at *2
(N.D. Ill. Apr. 25, 2013); Sommer, 2014 WL 3866254 at *2. With respect to the
EAJA inflation analysis, this court has adopted the two-step approach set out in
Mireles v. Astrue, No. 10 CV 6947, 2012 WL 4853065, at *3 (N.D. Ill. Oct. 11, 2012),

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requiring prevailing parties to make a showing that: (1) the cost of living has
increased in the region; and (2) that attorney costs have increased concomitantly
with inflation. See Cobb, 2013 WL 1787494 at *2. Therefore, in order for Turner to
prevail, she must demonstrate that: (1) the cost of living in the region has indeed
increased to the degree of her requested adjustment; and (2) her attorney’s costs
have increased in a manner tending to show that inflation has raised those costs.
Id. (citing Mireles, 2012 WL 4853065 at *3).
In support of her request for fees at the rate of $187.50 per hour, Turner
offers several facts to show that this case merits compensation above the
presumptive $125 ceiling from the 1996 legislation. To meet the first showing that
the cost of living in the region has increased, Turner attaches to her motion an
abbreviated printout copy of the Consumer Price Index Table showing the impact of
inflation for urban residents in the 10 years preceding 2012. (R. 30, Pl.’s Mot.,
Ex. A.)

Next, to show that her attorney’s costs have increased with inflation,

Turner attaches the affidavits of six different attorneys who practice in relevant
legal fields tending to establish that the prevailing market rate for the legal
services Turner received ranges from $250 to $550 per hour for experienced
attorneys. (Id. at ¶ 14, Exs. D, E, F, G, H, I.) Turner’s attorney also represents to
the court that his customary hourly rate is $300 per hour. (Id. at ¶ 14.) Further,
Turner’s attorney provides evidence that his business costs have increased.
Specifically, his office rent has increased 3 percent per annum since 1996, his
employees’ salaries have increased between 3 and 5 percent over the same period,

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and his healthcare costs have doubled in that time. (Id. at ¶ 16.) Turner’s attorney
represents that the increase in rent and salary payments is attributable to inflation.
(Id.) In addition to these factors, the court notes that the hourly rate requested by
Turner is comparable to the prevailing market rate. See Bias, 2013 WL 615804 at
*2 (granting a $181.25 hourly rate under the EAJA); Shipley v. Astrue, No. 10 CV
1311, 2012 WL 1898867, at *3-4 (S.D. Ind. May 23, 2012) (granting a $175.75 hourly
rate under the EAJA); Gonzalez v. Astrue, No. 10 CV 899, 2012 WL 1633937, at *2
(S.D. Ind. May 9, 2012) (granting a $180.23 hourly rate under the EAJA). All of this
evidence points squarely to the conclusion that inflation has increased the costs
Turner’s attorney must incur to adequately represent her against the government.
See Mathhews-Sheets, 653 F.3d at 563.
The government’s lone argument in opposition to Turner’s request is that
Turner has failed to connect inflation to the higher fees. The government points to
Sprinkle v. Astrue, No. 09 CV 5042, Doc. No. 27 (N.D. Ill. May 29, 2013) and Doc.
No. 37 (N.D. Ill. Oct. 4, 2013),2 and Oatis v. Astrue, No. 10 CV 6043, 2012 WL
965104, at *1 (N.D. Ill. Mar. 20, 2012), for the proposition that cost-of-living
increases are insufficient to prove the effect of inflation on attorney fees in order to
obtain compensation at a greater rate than $125 per hour.

According to the

government, Turner’s request is inadequate because she has “merely shown that

The government neglects to mention in its opposition that the Sprinkle decision is
on appeal before the Seventh Circuit pending a ruling (Sprinkle, No. 13-3654 (7th
Cir. argued Sept. 30 2014)).
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the cost of living has increased, she has not carried the burden of proving that her
counsel is entitled to an enhanced fee.” (R. 33 at 6.)
But the legal basis for the government’s opposition is shaky for several
reasons. The government’s reliance on Oatis is misplaced because that case dealt
with a litigant who attempted to prove inflation “merely [by] list[ing] awards
received by her counsel in other cases” and failing to make “even a minimal effort to
show that the cost-of-living factor warrants an increase[d] award consistent with
the requirement set forth in Matthews-Sheets.” 2012 WL 965104 at *1. But here,
Turner has gone beyond a mere listing of awards and has supplemented her request
with direct assertions of fact that inflation has increased the cost of relevant legal
services in this region, and to Turner’s attorney in particular. (See R. 30, Pl.’s Mot.,
¶¶ 14-18.) Those facts include evidence that the costs of everything from rent to
payroll to healthcare costs have increased for Turner’s attorney in the relevant
period.
Sprinkle presents a closer case. There, a request was made to exceed the
$125 per hour fee cap with very similar factual assertions by the prevailing party,
represented by the same attorney representing Turner here.

Specifically, the

Sprinkle plaintiff offered to prove entitlement to enhanced fees by providing a table
from the Consumer Price Index, attorney affidavits, and representations that
inflation is the cause of increased costs and therefore the cause of the need for
increased fees. No. 09 CV 5042, Doc. No. 27 at 1-2. But the court in Sprinkle found
that the plaintiff’s assertions were “conclusory” and insufficient to meet the burden

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to prove that inflation “has increased the cost of providing adequate legal services.”
Id. (emphasis in original). But it is unclear exactly what burden of proof EAJA
movants must satisfy. From this court’s reading of Matthews-Sheets, the primary
concern was that “the lawyer seeking such an adjustment [to the EAJA fee cap]
must show that inflation has increased the cost of providing adequate legal service
to a person seeking relief against the government.” 653 F.3d at 563. To make that
showing, “[a]n inflation adjustment must . . . be justified by reference to the
particular circumstances of the lawyer seeking the increase.” Id. at 563-64. What
the court meant by “reference” was left undefined. See id.
The subsequent case of Willoughby v. Astrue, 945 F. Supp. 2d 968, 970-72
(N.D. Ill. 2013), provides useful color to the Matthew-Sheets requirements.

In

Willoughby, the plaintiff’s attorney declined to provide information about personal
circumstances because it would entail “hours going through a warehouse of receipts
and expenditures.” Id. at 971. The district court found that although the plaintiff’s
attorney supplied information about prevailing market rates and the Consumer
Price Index, the refusal to supply any information specific to the attorney’s practice
failed the “personal circumstances” requirement under Matthews-Sheets. Id. accord
Butler v. Colvin, No. 10 CV 607-WDS, 2013 WL 1834583, at *2-3 (S.D. Ill. May 1,
2013) (requiring attorneys to provide individualized information about inflation to
meet the “reference” standard). Given that the Seventh Circuit requires only a
“reference” connecting inflation and “the particular circumstances of the lawyer,”
see Matthews-Sheets, 653 F.3d at 563-64, the court thinks it is unlikely that the

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Seventh Circuit intends trial courts to hold mini-hearings on EAJA motions to
receive expert opinions on the impact of cost-of-living increase on law firm balance
sheets before allowing a rate adjustment. Accordingly, the court concludes that the
information Turner’s attorney has supplied linking inflation to his operations costs
is a sufficient “reference” to his particular circumstances. See id.
The government also fails to cite or distinguish any of the prior decisions of
this court rejecting nearly identical arguments filed in opposition to EAJA fee
increases. In fact, the government does not even cite Cobb, a case in which this
court expressly adopted the Mireles approach, nor does the government cite any
other opinion issued by this court regarding the sufficiency of proof to overcome the
1996 fee cap of the EAJA. See, e.g., Ibarra-Montufar v. Colvin, No. 12 CV 736, 2013
WL 6507865 (N.D. Ill. Dec. 12, 2013) (rejecting a nearly identical argument by the
Commissioner in this case as one that “lacks legal or factual support”); Flores v.
Colvin, No. 13 CV 2521, 2014 WL 4784077 (N.D. Ill. Sept. 25, 2014) (awarding fees
above $125 per hour based on facts nearly identical to Turner’s). And, to the extent
that the government is arguing that Turner’s attorney should reveal the various
financial details of his law practice and a matrix of various costs to an inflationary
analysis, the Supreme Court has already eschewed the idea of wading into detailed
accounting of individual law firms to determine compensation under the EAJA in
other circumstances, and has expressed a preference for simpler calculations. See
Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 588-89 (2008) (“It strains credulity
that Congress would have abandoned [the] predictable, workable framework [of

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market practice] for the uncertain and complex accounting requirements that a
cost-based rule would inflict . . . .”). The government has not persuaded the court to
change its course on the standard of proof for enhanced EAJA fees. Perhaps the
Seventh Circuit in Sprinkle will provide additional guidance in this area when
ruling on the pending appeal.

But, at the present time, this court finds that

Turner’s factual showing is adequate to establish EAJA attorney fees at a rate of
$187.50 per hour.
Conclusion
For the foregoing reasons, Turner’s motion for an award of fees under the
EAJA is granted in the amount of $12,133.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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