R.-W. v. COLVIN

Filing 46

ORDER GRANTING PETITION FOR ATTORNEY FEES: The Court finds Plaintiff is entitled to attorney fees, and that the amount requested is reasonable. Accordingly, Plaintiff's Petition for Attorney Fees 32 is GRANTED and Plaintiff is AWARDED $6 ,768.75. The assignment to counsel should be honored unless the fee award is subject to offset for amounts owed to the United States government. See Astrue v. Ratliff, 130 U.S. 2521 (2010) ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus-Stinson on 2/10/2014. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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A. R.-W.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Defendant.

No. 1:13-cv-00369-JMS-DKL

ORDER GRANTING PETITION FOR ATTORNEY FEES
Plaintiff moves for an award of attorney fees pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).

Plaintiff was the

prevailing party in t h i s c a s e , w h i c h w a s r e m a n d e d t o t h e C o m m i s s i o n e r o f
Social Security pursuant to 42 U.S.C. § 405(g), sentence four.
The Commissioner does not contest the hours worked by Plaintiff’s
counsel. Nor does she claim that her position was substantially justified.
She does, however, challenge the hourly rate of $176 requested in the
motion.
The EAJA allows attorneys’ fees at “prevailing market rates,” but
subject to a cap.

The ceiling is $125 per hour “unless the court

determines that an increase in the cost of living or a special factor, such

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as the limited availability of qualified attorneys for the proceedings
involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii).
In Mathews-Sheets v. Astrue, 653 F.3d 560 (7th Cir. 2011), the
Seventh Circuit found that the EAJA does not automatically entitle an
attorney to an inflation adjustment and one is not presumed, even though
the $125 cap rate was set in March 1996. “Inflation affects different
markets, and different costs in the same market, in different ways,” and a
lawyer seeking an adjustment because of an increase in the cost of living
must show that “inflation has increased the cost of providing adequate
legal service to the person seeking relief against the government.” Id. at
563.

The court did not establish any particular method or manner by

which a lawyer might demonstrate that inflation has increased the cost of
legal service.
Here plaintiff’s counsel has provided evidence in the form of
national statistics demonstrating inflation, and specific increases in costs
of his legal practice as evidence to support the increased rate.

He cites

relevant authority allowing the Court to take judicial notice of the
increase in legal fees over the years, and cites fee awards from other
decisions in this district which exceed the request here.

Lastly, he cites

other decisions in this district where this showing has been found

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sufficient to justify the increased hourly rate (see, e.g., Shipley v. Astrue,
No. 1:10-cv-1311-DML-TWP, 2012 U.S. Dist. LEXIS 71709, at *9-10
(S.D. Ind. May 23, 2012)), and where the Commissioner did not oppose an
adjusted rate very similar to the one requested here, (see, e.g., Livingston
v. Colvin, No. 1:11-cv-1615-TWP-TAB, 2013 U.S. Dist. LEXIS170086
(S.D. Ind. Dec. 3, 2013); Cash v. Colvin, No. 4:11-cv-105-TWP-WGH,
2013 U.S. Dist. LEXIS 142282 (S.D. Ind. Oct. 1, 2013); Roddy v. Colvin,
No. 4:11-cv-23-TWP-WGH (S.D. Ind. June 3, 2013)).
This time the Commissioner does oppose the rate, challenging the
sufficiency

of

the

evidentiary

showing

under

Matthews-Sheets,

and

relying on this Court’s decision in Hooker v. Colvin, No. 1:13-CV-00718JMS, 2013 WL 6095778, at *7-8 (S.D. Ind. Nov. 20, 2013).
inapposite

here.

There

counsel

engaged

in

an

Hooker is

ineffective

briefing

strategy that disregarded the normal order of presentation, ignoring the
movant’s burden of presentation and proof.

See id. at *1-2.

counsel has not employed such a defective strategy.

A.R.-W.’s

Furthermore, unlike

in Hooker, A.R.-W.’s counsel does not rely solely on the Consumer Price
Index or on the experience of other attorneys.

See id. at *2-3.

As

detailed above, he provides evidence that, in conjunction with the

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increase in inflation, his costs of providing adequate legal services
increased as well.
The reasoning of Magistrate Judge Lynch’s ruling in Shipley,
applies with equal force here:
[C]ounsel has done more than simplistically assert that a
higher rate is appropriate because there has been inflation
since 1996 when the $125 cap was set. First, he points to the
large percentage change from 1996 to 201[3] (the year the
subject legal services were performed) in the Consumer Price
Index-All Urban Consumers, an index published by the United
States Department of Labor’s Bureau of Labor Statistics. . . .
Change in the CPI-U over time is widely used as an
appropriate measure of inflation and to “adjust payments for .
. . obligations that may be affected by changes in the cost of
living.” Id. According to [A. R.-W.] (and not challenged by
the Commissioner), the percentage change in the CPI-U from
1996 to 201[3] is [50]%.
Second, counsel has shown that the normal hourly rate he
charges and is paid by noncontingency fee clients doubled
from 1996 to 2013, from $100 to $200 per hour. The Seventh
Circuit, in a wide variety of contexts in which reasonable
attorneys’ fees are awardable under fee-shifting statutes, has
explained that the normal billing rate an attorney uses and is
actually paid in the market presumptively is a reasonable rate.
See Mathur v. Board of Trustees of Southern Illinois Univ.,
317 F.3d 738, 743-44 (7th Cir. 2003); People Who Care v.
Rockford Board of Education, 90 F.3d 1307, 1310 (7th Cir.
1996). The fact that counsel’s presumptively reasonable rate is
now markedly higher than $125, when his rate approximated
the cap rate in 1996, suggests that increases in the cost of
living are manifested in the cost of his legal services. Third,
counsel has pointed to certain costs incurred in his law
practice as evidence that his costs to provide legal services
have in fact greatly increased since 1996. For example, the
hourly rate he pays his legal assistant has more than doubled
in the last 11 years, from $10 to $22.
The fact that clients actually pay [A. R.-W.’s] counsel at a
$200 hourly rate, combined with the other data, convinces the
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court in this case that counsel has presented sufficient
evidence to justify a fee higher than $125 because of an
increase in the cost of living since 1996. Other courts within
the Seventh Circuit also have found a fee higher than $125
appropriate under the EAJA’s cost of living justification
when, among other things, counsel’s normal hourly rate
substantially exceeds the $125 cap. See, e.g., Scott v. Astrue,
2012 WL 527523 at *6 (N.D. Ill. Feb. 16, 2012).
Shipley v. Astrue, 2012 U.S. Dist. LEXIS 71709 at *9-11 (S.D. Ind. May 23, 2012).
Plaintiff’s counsel has justified his requested hourly rate.
Conclusion
T h e C o u r t f i n d s Pl a i nt i ff i s e n t i t l e d t o a t t o r n e y f e e s , a n d t h a t t h e
a m o u n t r e q u e s t e d i s r e a s o n a b l e . Accordingly, Plaintiff’s Petition for Attorney
Fees is GRANTED and Plaintiff is AWARDED $6,768.75. The assignment to
counsel should be honored unless the fee award is subject to offset for amounts owed to the
United States government. See Astrue v. Ratliff, 130 U.S. 2521 (2010).

02/10/2014
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF to:
Timothy J. Vrana
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
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