Trexler v. Commissioner of Social Security
Filing
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ORDER granting in part and denying in part 30 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 11/21/2014. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARTHUR TREXLER,
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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Civil No. 13-cv-506-CJP
MEMORANDUM AND ORDER
PROUD, Magistrate Judge:
This matter is before the Court on plaintiff’s Application for Attorney’s Fees
Under the Equal Access to Justice Act. (Doc. 30). Defendant filed a response in
opposition at Doc. 32.
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).
prevailing party.
therefore,
the
See, Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
The
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Plaintiff
is,
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 claimed by counsel.
Counsel for plaintiff asks the Court to award him $185.00 per hour for a
total of 25.65 hours. 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 as
reflected in the Consumer Price Index.
He does not argue that there is any
“special factor” within the meaning of §2412(d)(2)(A).
The cases cited by counsel all predate Mathews-Sheets v. Astrue, 653 F.3d
560 (7th Cir. 2011). Counsel’s argument was specifically rejected in that case:
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.
No information has been
presented from which the Court could conclude that inflation has actually
increased counsel’s cost of providing legal services.
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This Court holds that counsel for plaintiff has not demonstrated that he is
entitled to an increase in the statutory rate. Therefore, his fee will be calculated at
the rate of $125.00 per hour.
Counsel represents that he spent 25.65 hours working on this case.
Defendant does not challenge that figure. Therefore, the Court awards counsel of
total fee of $3,206.25 (three thousand, two hundred and six dollars and 25 cents),
representing 25.65 hours at a rate of $125.00 per hour.
Plaintiff’s Application for Award of Attorney Fees Pursuant to the Equal
Access to Justice Act (Doc. 30) is hereby GRANTED in part and DENIED in
part, as explained above. The Court awards plaintiff a total of $3,206.25 as fees.
The amount awarded is payable to plaintiff and is subject to set-off for any
debt owed by plaintiff to the United States, per Astrue v. Ratliff, 130 S.Ct. 2521
(2010).
However, any part of the award that is not subject to set-off to pay
plaintiff’s pre-existing debt to the United States shall be made payable to plaintiff’s
attorney pursuant to the EAJA assignment previously executed by plaintiff and his
attorney.
IT IS SO ORDERED.
DATED: November 21, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE
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