Lopes v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: The court GRANTS the motion for an award of fees and costs under the Equal Access to Justice Act [Doc. No. 26] and ORDERS as follows: The plaintiff is awarded $3,881.30 in attorney fees and $400 in costs under the EAJA, 28 U.S.C. § 2412. This award will satisfy all of Ms. Lopes's claims for attorney fees, expenses, and costs under the EAJA. Signed by Judge Robert L Miller, Jr on 7/9/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAREN E. LOPES,
PLAINTIFF
VS.

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT

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CAUSE NO. 3:17-CV-221 RLM-MGG

OPINION and ORDER
Karen Lopes moves for attorney fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412, following the court's entry of final judgment remanding
the case to the Commissioner of Social Security for further proceedings. Ms.
Lopes requests an award of fees in the amount of $3,881.30 and expenses in the
amount of $400. The Commissioner doesn't object to her request.
The EAJA permits recovery of attorney fees based on “prevailing market
rates,” but not 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). Ms. Lopes requests fees for her attorney at the rate of
$185 per hour for work performed on her case, and asserts that an hourly fee
greater than $125.00 for counsel is warranted based on inflation and a rise in
the cost of providing legal services.

In accordance with Section 204(d) of the Act, Ms. Lopes submitted an
itemized statement from her attorney showing “the actual time expended and the
rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B).
Counsel explains that the hourly rates for work performed in 2017 and 2018 are
based on the cost of living adjustments allowed by statute when employing the
Consumer Price Index-All Items Index obtained from the Bureau of Labor
Statistics.
The court finds that “given the passage of time since the establishment of
the hourly rate, a cost-of-living adjustment is warranted,” and counsel’s use of
the Consumer Price Index to calculate an appropriate inflation adjustment is
reasonable. Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008); see also
Williams v. Astrue, No. 11 C 2053, 2013 WL 250795, at *2 (N.D. Ill. Jan. 23,
2013) (“Courts in this district have allowed claimants to use the Consumer Price
Index to adjust hourly attorneys’ rates to account for cost of living increases in
EAJA cases.”). As noted, the Commissioner doesn’t object to the hourly rates
charged or the amount of fees requested by Ms. Lopes.
Based on the foregoing, the court GRANTS the motion for an award of fees
and costs under the Equal Access to Justice Act [Doc. No. 26] and ORDERS as
follows:
The plaintiff is awarded $3,881.30 in attorney fees and $400 in costs
under the EAJA, 28 U.S.C. § 2412. This award will satisfy all of Ms. Lopes’s
claims for attorney fees, expenses, and costs under the EAJA.
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Any fees paid belong to Ms. Lopes and can be offset to satisfy any preexisting debt that she owes the United States. See Astrue v. Ratliff, 560 U.S. 586
(2010). After the court enters this award, if counsel for the Commissioner can
verify that Ms. Lopes owes no pre-existing debt subject to offset, the
Commissioner will direct that the award be made payable to Ms. Lopes’s
attorney.
SO ORDERED.
ENTERED:

July 9, 2018
/s/ Robert L. Miller, Jr.
Judge, United States District Court

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