Wright v. Colvin
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 6/14/2017.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHEN DISTRICT OF ILLINOIS
JEFFREY L. WRIGHT,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security 1
Honorable Michael T. Mason
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Plaintiff Jeffrey L. Wright’s motion for attorney’s fees under the Equal Access to
Justice Act  is granted in part. For the reasons set forth below, the Court awards
$12,462.39 in fees and costs.
Procedural History and Legal Standard
On October 17, 2014, plaintiff Jeffrey Wright (“plaintiff”) filed this action
challenging the June 28, 2013 decision of the Administrative Law Judge (“ALJ”) denying
his claim for disability benefits. On February 16, 2017, this Court remanded the case to
the Social Security Administration for further proceedings . The Court found that the
ALJ’s finding that the plaintiff suffered from chronic regional pain syndrome was
inconsistent with her findings on credibility, that the ALJ did not properly evaluate
plaintiff’s subjective symptoms related to irritable bowel syndrome and diverticulitis, and
that the ALJ did not properly explain why she rejected a medical opinion. (Id.)
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of
Civil Procedure 25(d).
Plaintiff now seeks to recover his attorney’s fees and costs in the amount of
$14,699.94, 2 pursuant to the Equal Access to Justice Reform Act (“EAJA”), 28 U.S.C. §
2412(d). Under the EAJA, a party who prevails against the United States in a civil
action is entitled to an award of reasonable attorney’s fees and other expenses accrued
in the process of the litigation. Trump v. Colvin, No. 12 CV 6194, 2015 WL 970111, at
*1 (N.D. Ill. Mar. 2, 2015). A plaintiff is eligible to recover attorney’s fees if: (1) he is the
prevailing party; (2) the government’s position was not substantially justified; (3) no
special circumstances make an award unjust; and (4) he filed a timely and complete fee
application. 28 U.S.C. § 2412(d)(1)(A).
Plaintiff argues that he is entitled to fees and costs because the Commissioner’s
position was not substantially justified. He also argues that he is entitled to recover
attorney’s fees above the statutory rate of $125 per hour because of an increase in the
cost of living. The Commissioner does not dispute that its position was not substantially
justified; instead, the Commissioner argues that plaintiff’s proposed hourly rate is too
high and that the number of attorney hours spent on plaintiff’s case is excessive. The
Commissioner, therefore, requests that plaintiff’s fee award be lower than what he is
a. Hourly Rate
Pursuant to the EAJA, an award of attorney’s fees “shall be based upon the
prevailing market rates for the kind and quality of services furnished, except
that...attorney fees shall not be awarded in excess of $125.00 per hour unless the court
In his opening brief, plaintiff requests an award in the amount of $14,285.38. In his reply brief, he
includes fees for the 2.2 hours spent preparing the reply brief.
determines that an increase in the cost of living...justifies a higher fee.” 28 U.S.C. §
2412(d)(1)(A)(ii). The EAJA compensation arrangement was last modified in 1996,
when Congress set the current $125 maximum hourly rate. The Seventh Circuit has
determined that “given the passage of time since the establishment of the [$125] hourly
rate, a cost-of-living adjustment is warranted.” Trump, 2015 WL 970111, at *2 (citing
Tchemkow v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008)).
The Seventh Circuit has since clarified the appropriate means for calculating the
cost-of-living adjustment for EAJA petitions. In Sprinkle v. Colvin, 777 F.3d 421 (7th Cir.
2015), the Court determined that the Consumer Price Index (“CPI”) is sufficient “proof of
an increase in the cost of living” and the court “should generally award the inflationadjusted rate according to the CPI, using the date on which the legal services were
performed.” Trump, 2015 WL 970111, at *2 (citing Sprinkle, 777 F.3d at 423). The
Sprinkle decision does not necessarily create an automatic entitlement to a fee
enhancement. Instead, in order to justify a higher rate, “claimants must still produce
satisfactory evidence that the rate they request is in line with those prevailing in the
community for similar services by lawyers of comparable skill and experience.”
Sprinkle, 777 F.3d at 428. Moreover, “courts may not award claimants inflationadjusted rates that are higher than prevailing market rates.” Trump, 2015 WL 970111,
at *3; see also Sprinkle, 777 F.3d at 429 (“to avoid the possibility of a ‘windfall,’ courts
may not award an inflation-adjusted rate that is higher than the prevailing market rate in
the community for comparable legal services”).
Here, plaintiff seeks to recover fees based on an hourly rate of $188.44. 3 This
amount was based on the national CPI, rather than the regional CPI. Plaintiff explains
that the national measure yields a slightly higher result. He further contends that this is
the more appropriate index to use because it is more in line with the prevailing market
rates, which are established in the affidavits plaintiff has attached to his motion. The
Commissioner argues that the regional CPI is a more appropriate measure of the
inflation-adjusted rate in this case because it is specific to attorneys in the Chicago
region, where the case was litigated.
In Sprinkle, the Seventh Circuit left it to the court’s discretion whether to use the
national or the regional CPI rate when calculating the inflation-adjusted hourly rate. 777
F.3d at n.2. (“We ...leave to the discretion of the district courts whether to adopt the
national or regional index in specific cases.”). District courts have utilized the regional
index in published decisions in this Circuit since the Sprinkle decision. See, e.g.,
Trump, 2015 WL 970111, at *3 and n.3 (“This case was filed in the Chicago
metropolitan area. The Court finds it appropriate to calculate claimant’s attorney’s fees
using the Chicago-Gary-Kenosha regional CPI-U.”); Adams v Colvin, No. 14 CV 1680,
2015 WL 1780144, at *2 (N.D. Ind. Apr. 20, 2015) (utilizing the Midwest urban region
CPI); Vasquez v. Colvin, No. 13 CV 6222, 2016 WL 68700, *2 (N.D. Ill. Feb. 19, 2016).
As a result, we will utilize the regional index as well. This yields an hourly rate of
$183.17 for the month of February 2015, the month in which a majority of the legal work
was performed by plaintiff’s counsel. Additionally, the Court notes that plaintiff has
provided affidavits demonstrating that a cost-of living adjustment is appropriate in this
case. Sprinkle, 777 F.3d at 428-29 (noting that “a court may find, in its discretion, a
Plaintiff also seeks to recover fees for two hours of legal assistant time at an hourly rate of $95.00
single sworn statement from a claimant’s attorney, setting forth the prevailing market
rate, to be sufficient in some cases). Accordingly, we adopt the Commissioner’s
proposed hourly rate.
b. Reasonableness of Number of Hours
We next turn to the Commissioner’s remaining argument regarding the number of
hours worked on the case. Plaintiff seeks to recover attorney fees for 77 hours of time
(plus two hours of work by a legal assistant) worked on the case to date. Under the
EAJA, the prevailing party has the burden of proving that the number of hours worked
was reasonable. Large vs. Colvin, 12 CV 50101, 2014 WL 117174, at *2 (N.D. Ill. Jan.
13, 2014). The court should not grant a fee request that is “excessive, redundant, or
otherwise unnecessary.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
“While no precise rule or formula for determining what fees are reasonable exists,
courts should avoid engaging in an arbitrary determination of how long a reasonable
attorney would spend on certain matters.” Seabron v. Astrue, 11 CV 1078, 2012 WL
1985681, at *1 (N.D. Ill. June 4, 2012).
Here, the Commissioner objects that some of plaintiff’s attorney’s time entries are
excessive. For example, plaintiff’s counsel spent 22.75 hours reviewing the record and
taking notes and an additional 31.85 hours drafting and reviewing plaintiff’s opening
brief. We agree with the Commissioner that this amount of time is excessive. 4 See,
e.g., Porter v. Barnhart, No. 04 CV 6009, 2006 WL 1722377, at *3 (N.D. Ill. June 19,
2006) (finding number of hours worked unreasonable where plaintiff’s attorneys spent
37.4 hours on reviewing the administrative record and transcript, performing legal
The Commissioner used different examples of the excessive time, choosing to focus on the amount of
time spent drafting the statement of facts instead of the entire opening brief. Nonetheless, the Court
agrees that the time was excessive.
research and drafting Porter’s motion for summary judgment). Plaintiff argues that the
record here was in excess of 1,000 pages, that his opening brief was 25 pages, and that
the Commissioner’s brief was 30 pages. We acknowledge that the administrative
record in this case was voluminous; however, we still find the number of hours spent
reviewing the record and drafting the opening brief here to be excessive. Accordingly,
we will reduce the amount of time spent preparing the opening brief from 31.85 to 21.85
After making this adjustment, plaintiff’s total hours are reduced to 64.8 hours.
This number is in accord with other cases addressing similar EAJA motions in this
Circuit. See, e.g., Schulten v. Astrue, No. 08 CV 1181, 2010 WL 2135474, at *6 (N.D.
Ill. May 28, 2010) (noting that the “permissible range” is “generally” between 40 and 60
hours); compare Embry v. Colvin, No. 12 CV 3685, 2015 WL 4720106, at *5 (N.D. Ill.
Aug 4, 2015) (finding 357 hours of time unreasonable). Having determined a
reasonable number of hours and the appropriate hourly rate, the Court finds that plaintiff
is entitled to $12,059.42. This number is based on the monthly hourly rate that the
Commissioner included in its response brief and includes the two hours of legal
c. Supplemental Fee Request
At the conclusion of his reply brief, plaintiff adds that his counsel, Barry Schultz,
spent 2.2 hours drafting the EAJA reply brief, which also included reviewing plaintiff’s
opening brief, reviewing defendant’s response, and conducting legal research.
Accordingly, plaintiff seeks to recover for this time as well. The Court will grant plaintiff’s
request to recover fees for this time. As explained above, the hourly rate for this time
should be calculated using the regional CPI, which, according to the Commissioner’s
brief, is $183.17. Adding this to the fees we awarded above brings the total amount to
For the foregoing reasons, we grant plaintiff’s motion for fees under the EAJA in
part and award him $12,462.39 in fees incurred in connection with this litigation.
Michael T. Mason
United States Magistrate Judge
Dated: June 14, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?