ALLEN v. ASTRUE

Filing 40

ENTRY - Mr. Allen's Petition for Attorney Fees Under the Equal Access to Justice Act (Dkt. 30 ) is hereby GRANTED. For the reasons set forth above, the Court finds the amount of $9,626.25 in attorney's fees to be reasonable. The Co urt awards to Mr. Allen attorney's fees under 28 U.S.C. § 2412(d) in the amount of $9,626.25, and the Commissioner shall direct that the award be made payable to Mr. Allen's counsel consistent with the assignment in the record (Dkt. 31-1) within thirty (30) days of the entry of this Entry. Signed by Judge Tanya Walton Pratt on 10/7/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBERT A. ALLEN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 1:10-cv-01522-TWP-MJD

ENTRY ON APPLICATION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT
This matter is before the Court on the motion by Plaintiff, Robert A. Allen (“Mr. Allen”),
for an award of attorney’s fees and expenses under the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (“EAJA”). Mr. Allen applied for Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”) based on severe physical impairments. His application was denied
initially, on reconsideration, and by an Administrative Law Judge. The Appeals Council denied
review, and Mr. Allen prevailed on judicial review when this Court remanded his case for further
administrative proceedings under sentence four of 42 U.S.C. § 405(g). (Dkt. 27.) For the
reasons discussed below, Mr. Allen’s Petition for Attorney Fees Under the Equal Access to
Justice Act (Dkt. 30) is GRANTED.
I. DISCUSSION
The EAJA provides that a successful litigant against the federal government is entitled to
recover attorney’s fees if: (1) he was a “prevailing party”; (2) the government’s position was not
“substantially justified”; (3) there existed no special circumstances that would make an award
unjust; and (4) he filed a timely application with the district court. 28 U.S.C. § 2412(d)(1)(A),

(B); Cunningham v. Barnhart, 440 F.3d 862, 863 (7th Cir. 2006). Mr. Allen was the prevailing
party and his fee application was filed timely. His counsel seeks compensation for 41.7 hours of
attorney time at the rate of $188.75 per hour for a total of $9,626.25. The Commissioner,
however, opposes the attorney’s fee and asks the Court to reduce the award because the hourly
rate sought is unjustified and unreasonable and asks the Court to award fees at the statutory rate.
Under the EAJA, “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, such as the limited
availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C.
§ 2412(d)(2)(A)(ii) (emphasis added). “The $125 rate is a presumptive ceiling; to justify a
higher rate the plaintiff must point to inflation or some other special factor.” Mathews-Sheets v.
Astrue, 653 F.3d 560, 563 (7th Cir. 2011) (emphasis added). Mr. Allen’s counsel has calculated
an increase in the cost of living using the Midwest Urban Consumer Price Index (“CPI”) for
2011, arriving at a rate of $188.75 per hour. The Commissioner argues that Mr. Allen’s counsel
has failed to demonstrate that without an increase to the requested hourly rate, a competent
lawyer in the geographic area would not handle such an appeal.
A cost of living increase is not automatically added to the statutory fee. Mathews-Sheets,
653 F.3d at 563. However, an attorney is not required to show both that inflation justifies a
higher fee and a special factor such as the unavailability of lawyers able to handle such cases at a
lower rate in the relevant geographic area. Id. at 565. Mr. Allen’s counsel stated that the cost to
operate his practice in Frankford, Indiana has increased 99.7% from 1996 to 2010, which is
almost twice the amount that the CPI increased for the same period. The Court finds that Mr.
Allen’s counsel has shown that inflation has had an impact upon the costs associated with

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operating his practice. Therefore, the Court finds that the increase above the statutory amount is
reasonable, and Mr. Allen is entitled to the requested hourly rate of $188.75.
II. CONCLUSION
Mr. Allen’s Petition for Attorney Fees Under the Equal Access to Justice Act (Dkt. 30) is
hereby GRANTED. For the reasons set forth above, the Court finds the amount of $9,626.25 in
attorney’s fees to be reasonable. The Court awards to Mr. Allen attorney’s fees under 28 U.S.C.
§ 2412(d) in the amount of $9,626.25, and the Commissioner shall direct that the award be made
payable to Mr. Allen’s counsel consistent with the assignment in the record (Dkt. 31-1) within
thirty (30) days of the entry of this Entry.

SO ORDERED.
10/07/2013
Date: ___________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
C. David Little
POWER LITTLE & LITTLE
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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