Roach v. Commissioner of Social Security
Filing
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OPINION AND ORDER GRANTING the Plaintiffs Motion for Attorneys Fees Under theEqual Access to Justice Act [DE 25]. Signed by Magistrate Judge Andrew P Rodovich on 10/20/14. (eml)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KENNETH ROACH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.
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2:12-cv-289
OPINION AND ORDER
This matter is before the court on the Plaintiff’s Motion for Attorney’s Fees Under the
Equal Access to Justice Act [DE 25] filed on February 19, 2014. For the following reasons, the
motion is GRANTED.
Background
The plaintiff, Kenneth Roach, applied for Disability Insurance Benefits and Supplemental
Security Income and was found not disabled by the Social Security Administration. Roach
appealed the decision to this court, and on November 22, 2013, the court remanded the ALJ’s
decision for further proceedings. On February 19, 2014, Roach filed the instant motion for
attorney’s fees, requesting $9,965.85, plus costs of $19.80. Roach’s attorney determined this
was the amount due by multiplying the number of hours spent, 52.4, by the hourly rate of
$186.38. The Commissioner disputes the amount of recoverable attorney’s fees.
Discussion
The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in
litigation against the Commissioner of Social Security unless the court finds that the position of
the United States was substantially justified or that special circumstances make an award unjust.
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28 U.S.C. § 2412(d)(1)(A); see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154, 110 S.Ct.
2316, 110 L.Ed.2d 134 (1990); Golembiewski v. Barnhart, 382 F.3d 721, 723-34 (7th Cir.
2004). A fee application must be filed within thirty days of a courts final judgment and must
satisfy the following requirements: (1) a showing that the applicant is a “prevailing party”; (2) a
showing that the application is “eligible to receive an award”; (3) a showing of “the amount
sought, including an itemized statement from any attorney or expert witness representing or
appearing in[sic] behalf of the party stating the actual time expended and the rate at which fees
and other expenses were computed”; and (4) an “alleg[ation] that the position of the United
States was not substantially justified” 28 U.S.C. § 2412(d)(1)(B); see also Scarborough v.
Principi, 541 U.S. 401, 405, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004); United States v. Hallmark
Constr. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting forth the elements of §
2412(d)(1)(A) & (B))).
The Commissioner agrees that Roach was the prevailing party, is eligible to receive an
award, and that the position of the United States was not substantially justified. However, the
Commissioner disputes whether the rate of attorney’s fees and the amount of time billed on this
matter were reasonable.
The EAJA provides that “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 . . . justifies a
higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). In Matthews– Sheets v. Astrue, 653 F.3d 560, 563
(7th Cir. 2011), the Seventh Circuit explained that the plaintiff’s attorney can justify a higher fee
by showing either that “inflation has increased the cost of providing adequate legal service to a
person seeking relief against the government” or that “a special factor” supports the increase,
namely, that the case “requires for competent counsel someone from among a small class of
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specialists who are available only for [more than $125] per hour”. Matthews– Sheets, 653 F.3d
at 563, 565. The Seventh Circuit specifically explained that these two factors do not merge and
that a lawyer arguing for a cost of living increase need not show the limited availability of
lawyers to handle the case. Matthews– Sheets, 653 F.3d at 565.
However, an attorney is not automatically entitled to a cost of living increase and has the
burden of demonstrating that a fee above that prescribed by the statute is justified. Because
inflation affects markets in different ways, the requesting attorney “must show that inflation has
increased the cost of providing adequate legal service” and must do so with reference to his
particular circumstances. Matthews-Sheets, 683 F.3d at 563-564. It is not sufficient to show
that the law firm’s expenses increased by a percentage over the relevant time. Mathews-Sheets,
683 F.3d at 563-564. Rather, the plaintiff has the additional burden of showing that the increase
in expenses was due to inflation and not a business decision to increase costs, such as obtaining a
larger office space or giving salary increases.
In this matter, Roach’s attorney has demonstrated both inflation in the geographic area by
pointing to the local Consumer Price Index and how inflation has affected his ability to provide
legal services. Although not determinative, he also has submitted the affidavits of other
attorneys sharing his specialty who charge rates similar to that which Roach’s counsel seeks.
The Commissioner argues that Roach made no attempt to indicate whether the cost increases
were due to inflation or solely caused by his attorney’s choosing, and that the affidavits prepared
by the other attorneys are not determinative of whether the inflated rates were due to inflation.
The court disagrees with the Commissioner’s arguments. The affidavits shed light on the
reasonableness of the fees, but more importantly Roach’s attorney did explain how his increased
costs were affected by inflation. In particular, he stated that his office rent has increased by at
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least 3% per annum, which does not take into consideration a move to a larger office, he has paid
salary increase to keep with the pace of salaries paid by other law firms and businesses, and
health insurance has risen at least 100%, as have the costs of legal research tools, continuing
legal education conferences, and basic office supplies such as file folders. None of these costs
were the result of a choice Roach’s attorney made, but were the direct result of inflation.
The Commissioner also argues that Roach’s counsel has failed to show the “special
factor” that no competent attorney could represent the claimant for a lesser amount. As the court
explained above, Roach need not make such a showing when his request is based on inflation
rather than the “special factor.” Because Roach’s attorney has displayed how inflation has
affected the geographic market and his own expenses and other courts within this district
consistently have found similar fees to be reasonable, the court agrees that $186.38 is a
reasonable hourly rate. See Large ex rel. S.L. v. Colvin, 2014 WL 117174, *4 (N.D. Ill. Jan. 13,
2014) (citing Brazitis v. Colvin, 2013 WL 6081017, *1–2 (N.D.Ill. Nov.19, 2013) (granting
increase to $184.75 for work performed by Barry Schultz and his legal staff based on the same
evidence provided in this case); Booker v. Colvin, 2013 WL 2147544, at *3–5 (N.D.Ill. May 16,
2013) (granting increase to $169.71 for Barry Schultz); Scott v. Astrue, 2012 WL 527523, at *6
(N.D.Ill. Feb.16, 2012) (granting increase in hourly rate to $171.25 for district court case and
$175 for appellate court case); Claiborne ex rel. L .D. v. Astrue, 877 F.Supp.2d 622, 623–28
(N.D. Ill. 2012) (granting increase to $181.25)); Willoughby v. Astrue, 945 F.Supp.2d 968, 971
(N.D. Ill. May 14, 2013) (finding rate of $180 reasonable); Plump v. Colvin, 2014 WL 523052,
*5 (N.D. Ind. Feb. 10, 2014) (finding an hourly rate of $181.59 reasonable); Butler v. Colvin,
2013 WL 1834583, *3 (S.D. Ill. May 1, 2013) (finding rate of $182.50 reasonable).
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The Commissioner also disputes whether the number of hours billed were excessive,
arguing that the issues raised were not complex and that the time billed was duplicative. Hours
that are not properly billed to one’s client are also not properly billed to one’s adversary pursuant
to statutory authority. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933 (1983) (quoting
Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). As a result, the prevailing party
should make a good-faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1940. The
amount of a fee award is left to the discretion of the district court because of its superior
understanding of the litigation and the desirability of avoiding frequent appellate review of what
essentially are factual matters. See Hensley, 461 U.S. at 437, 103 S.Ct. at 1940.
The Commissioner criticizes Roach’s attorney fee petition for including repetitive and
excessive entries. Specifically, three attorneys were staffed on the case, requiring unnecessary
time expenditures for each attorney to develop familiarity with the case. Additionally, it took
nearly 40 hours to write one brief, including 35.5 hours to draft and edit the brief by one attorney
and an additional 4.3 hours by another who prepared a detailed memorandum of the issues to be
raised in the brief, and reviewed, edited, and re-wrote part of the brief. Roach’s attorney does
little to respond to this argument. He argues only that courts within this district have held that
fee petitions for hours billed covering a range within which the amount he billed were reasonable
and that the plaintiff raised numerous legal issues, and included a detailed factual assessment of
the 458 page administrative record.
In support of her position, the Commissioner points to several cases that determined that
the typical hours spent on a Social Security disability case range from 20 to 40. However, none
of the cases originated within the Seventh Circuit, and other cases have determined that more
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hours typically are necessary. Large ex rel. S.L. v. Colvin, 2014 WL 117174, *3 (N.D. Ill. 2014)
(citing Schulten v. Astrue, 2010 WL 2135474, at *6 (N.D.Ill. May 28, 2010) (collecting cases
finding that permissible range of attorney hours spent in district court for social security cases is
40 to 60 hours); Porter v. Barnhart, 2006 WL 1722377, at *4 (N.D.Ill. June 19, 2006) (awarding
88.2 hours of attorneys' fees)).
The Commissioner only was able to identify two examples of the time she found
duplicative, including 4.3 hours billed by Attorney Schultz to prepare a memorandum of the
issues involved in this matter, review the brief, and make edits, and .6 hours spent by another
attorney to review a brief. It is common for senior attorneys to review another’s work, and the
court does not find this duplicative or excessive. Additionally, Roach’s briefs, including his
initial brief, reply, and memorandum in support of attorney’s fees were lengthy, and the amount
of time billed falls within the range of hours typically requested and awarded. For these reasons,
the court does not find that the amount of time expended was unreasonable.
Based on the foregoing, the Plaintiff=s Application for Attorney=s Fees Under the Equal
Access to Justice Act is GRANTED. The Commissioner is ORDERED to pay $9,985.61 in
attorney=s fees and costs. If counsel can verify that Roach owes no pre-existing debt subject to
offset, the Commissioner will direct that the award be made payable to Roach=s attorney if the
parties have a signed EAJA assignment.
ENTERED this 20th day of October, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge
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