HOOKER v. COLVIN

Filing 22

ORDER granting in part Plaintiff Matthew Hooker's 19 Motion for Attorney Fees (see Order). Signed by Judge Jane Magnus-Stinson on 11/20/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MATTHEW HOOKER,
Plaintiff,
vs.
CAROLYN COLVIN, Acting Commissioner of
Social Security,
Defendant.

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1:13-cv-00718-JMS-TAB

ORDER
Presently pending before the Court is Plaintiff Matthew Hooker’s Motion for Attorney’s
Fees under the Equal Access to Justice Act (“EAJA”). [Dkt. 19.] Mr. Hooker filed this action
seeking reversal of Administrative Law Judge Julia Gibbs’ decision that he was not disabled as
defined by the Social Security Act. [Dkt. 15.] Shortly thereafter, the parties agreed to remand
the case for further administrative proceedings. [Dkt. 16.] The Court granted the motion and
entered judgment accordingly. [Dkts. 17; 18.] The instant Motion for Attorney’s Fees under the
EAJA followed.
In Mr. Hooker’s opening brief, he requests an award of $3,447.11 for legal services rendered in this action, representing 18.5 hours of work at $186.33 per hour. [Dkt. 19-1 at 2.] The
Commissioner does not argue that an EAJA fee award is inappropriate, nor does she contest that
compensation for 18.5 hours is warranted. The Commissioner does maintain, however, that Mr.
Hooker did “not justify an enhanced hourly rate in his opening brief, and cannot do so for the
first time in reply.” [Dkt. 20 at 1.] In his reply brief, Mr. Hooker contends that the enhanced
hourly rate is justified and that he explicitly reserved his right to justify the award in his reply
brief. [Dkt. 21 at 1.] Moreover, on reply, he requests fees for 24 hours, 5.5 hours more than his
original request, to compensate for “research and preparation” of the reply brief, resulting in a
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total fee request of $4,471.92. [Dkt. 21 at 3.] The Court will address the appropriateness of the
requested hourly rate and compensable hours in turn.
A.

Hourly Rate

“The [EAJA] . . . provides that the award ‘shall be based upon prevailing market rates for
the kind and quality of the services furnished, except 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 [since
1996, when the current version of the Act was passed] or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved, justifies a higher fee.’”
Mathews-Sheets v. Astrue, 653 F.3d 560, 562 (7th Cir. 2011) (second alteration in original)
(quoting 28 U.S.C. § 2412(d)(2)(A)(ii)).

“The $125 rate is a presumptive ceiling; to justify a

higher rate the plaintiff must point to inflation or some other special factor.” Id. Should the
claimant point 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 [EAJA] 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.
Id. (emphasis in original).
Before turning to the parties’ arguments, the Court notes its concern about Mr. Hooker’s
decision to not fully justify the requested inflation-adjusted hourly rate in his opening brief, waiting instead to do so in his reply brief in the event that the Commissioner contested the rate
sought. This wait-and-see approach is inappropriate. First, the party seeking an inflationadjusted rate bears the burden of proving that such a rate is warranted. See id. That party should
therefore attempt to carry their burden in the opening brief. See Cummings v. Astrue, 2013 WL
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1840410, *2 (S.D. Ind. 2013) (“The Seventh Circuit’s decision in Mathews-Sheets has made it
clear that the attorney must show that inflation actually justifies a higher fee for that attorney’s
practice, therefore counsel should include this specific information in his initial petition . . . .”).
Secondly, as the Commissioner points out, such a briefing method will necessitate the filing of a
surreply in every case where the Commissioner desires to contest the specific evidence proffered
to justify the requested rate. [Dkt. 20 at 2.]
The Court recognizes that Mr. Hooker’s counsel purports to proceed in this manner to
minimize attorney’s fees in instances when a reply brief is unnecessary. [Dkt. 19-1 at 2.] But
again, as the Commissioner asserts, “any efficiency gains would be offset by the need to file a
surreply to address new justifications for enhanced fees,” [dkt. 20 at 2]. As discussed further below, the Court agrees with the Commissioner that efficiency concerns militate toward including
justifications for the requested fee in the opening brief. See, e.g., Cummings, 2013 WL 1840410,
at *2 (recognizing that the inclusion of the specific justifications for the requested fee in the
opening brief “may eliminate the need for the Commissioner to file a response in opposition to
the EAJA fee.”).
Perhaps more importantly, Mr. Hooker adopts this wait-and-see approach at his own peril. This is because the Court “is entitled to find that an argument raised for the first time in a re-

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ply brief is forfeited.”1 Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009). Thus the Court,
in its discretion, can decide not to address justifications set forth for the first time in reply brief.
Mr. Hooker’s briefing reveals that almost all of the arguments made in support of the requested fee were made for the first time in his reply brief. In his opening brief, Mr. Hooker suggests that the requested rate is appropriate because his counsel is an experienced social security
attorney and that inflation, as measured by the Consumer Price Index (“CPI”), justifies the hourly rate requested.2 [Dkt. 19-1 at 2.] The unadorned assertion that Mr. Hooker’s counsel is “very
experienced” (an assertion that was not supported by evidence), without more, does not explain
why the inflation-adjusted rate is warranted, as his counsel’s experience, without more, does not
relate to how inflation has impacted his counsel’s practice. See Mathews-Sheets, 653 F.3d at
563-64. And sole reliance on the generalized notion that inflation, as measured by the CPI, has
occurred is clearly insufficient to justify the requested rate. See id. at 562; see also Walton v.
Colvin, 2013 WL 1438103, *4 (S.D. Ind. 2013) (“Mathews-Sheets expressly rejected citing inflation without providing further evidence indicating how it has affected the relevant market.”);
Hart v. Astrue, 2012 WL 2577515, *1-2 (S.D. Ind. 2012) (“While abundant or complex evidence
is not required, Plaintiff is required to provide some basis to justify an increase in fees from the
1

Mr. Hooker notes that “the Plaintiff explicitly reserved the right to present additional arguments
in this reply brief.” [Dkt. 21.] But he cites no authority supporting his implicit proposition that
he can circumvent forfeiture principles simply by reserving the right to assert new arguments in
his reply brief that he could have and should have raised in his opening brief. This is not surprising, given that “forfeiture is the failure to make the timely assertion of a right.” United States v.
Berg, 714 F.3d 490, 498 (7th Cir. 2013) (emphasis added) (citation and quotation marks omitted). Put differently, Mr. Hooker cites no authority for the proposition that he can reserve the
right to make an untimely argument.
2

The fact that Mr. Hooker justifies the hourly rate based on inflation in his opening brief distinguishes this case from Mathews-Sheets, where forfeiture was inappropriate because the Commissioner opened the door for the claimant to justify the requested hourly rate based on inflation.
653 F.3d at 563. Unlike here, the claimant’s opening brief in Mathews-Sheets did not “mention
cost of living.” Id.
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$125.00 statutory rate.”) (emphasis in original). Because the only other arguments and evidence
in support of the requested rate were first advanced in Mr. Hooker’s reply brief when they could
have been raised in his opening brief, the Court would be well within its discretion to deem those
arguments forfeited and reject the requested hourly rate on this ground.3 See Narducci, 572 F.3d
at 324.
The Court need not rest its rejection of the requested rate on Mr. Hooker’s forfeiture,
however, because even considering Mr. Hooker’s late-blooming arguments, he failed to comply
with the dictates of Mathews-Sheets. To justify the requested rate of $186.33 per hour in his reply brief, Mr. Hooker relies again on the CPI Inflation Calculator and the fact that, in several
other cases in this District, hourly rates greater than the $125 presumptive ceiling have been
awarded. [Dkt. 21 at 2-3 (citing cases).] Furthermore, Mr. Hooker attaches three affidavits to
his reply brief from attorneys “that state that they charge more than $125 per hour and would not
take a case without an enhanced fee adjusted for inflation.” [Id. at 3.]
None of these bases for the requested rate meet the showing required under MathewsSheets. As discussed above, the CPI alone is insufficient to justify a rate above the presumptive
ceiling. See Mathews-Sheets, 653 F.3d at 562; Walton, 2013 WL 1438103, at *4. Nor does Mr.
Hooker’s reliance on other cases awarding comparable hourly rates justify the rate requested in
this case, as the requested “inflation adjustment must . . . be justified by reference to the particu3

Mr. Hooker contends that the Commissioner’s position that he cannot justify the requested fee
in his reply brief is “wrong” given that, in Cummings, evidence submitted only in reply was
deemed sufficient. [Dkt. 21 at 2.] This argument is without merit. Matters of forfeiture are discretionary. See, e.g., Narducci, 572 F.3d at 324 (holding that district courts are “entitled,” rather
than required, to deem arguments forfeited that are raised for the first time in a reply brief);
Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 389 (7th Cir. 2003) (same). Thus,
a forfeiture forgiven in one case does not foreclose the application of forfeiture in another.
Moreover, in forgiving the forfeiture in Cummings, the Court stressed that counsel requesting a
higher fee “should include” the justification “in [her] initial petition.” Cummings, 2013 WL
1840410, at *2 n.2. As discussed above, Mr. Hooker failed to do so.
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lar circumstances of the lawyer seeking the increase.” Mathews-Sheets, 653 F.3d at 564 (emphasis added).
For this same reason, the Court cannot rely on the three affidavits submitted by Mr.
Hooker to support the requested fee. Each of the three affidavits submitted by Mr. Hooker are
from experienced social security attorneys who state that their non-social security hourly rate is
significantly greater than $125 per hour and that “[i]nflation has increased the cost of providing
adequate legal services to [their] social security clients,” including increased costs for staff salaries, rent, legal research and insurance. [Dkt. 21-1; see also dkts. 21-2; 21-3.] Such evidence,
like Mr. Hooker’s reliance on other cases from this District, does not speak to “the particular circumstances” of Mr. Hooker’s counsel, as is required. Mathews-Sheets, 653 F.3d at 564. In other
words, this evidence “does not satisfy Mathews-Sheets, in that it does not answer the question of
how inflation . . . has affected the cost of providing legal services by this attorney; it only tells
the Court that there has been inflation and an increase in legal fees generally.” Orr v. Astrue,
2013 WL 1840471, *3 (S.D. Ind. 2013) (emphasis added); see also Thompson v. Commissioner
of Social Sec., 2013 WL 3228555, at *1 (C.D. Ill. 2013) (holding that compliance with MathewsSheets requires the claimant to “show an increase in the cost of legal services, both for his attorney specifically and for others in the legal market in his region”) (emphasis added); Mireles v.
Astrue, 2012 WL 4853065, *3 (N.D. Ill. 2012) (“Mathews-Sheets is best read to require a litigant
seeking a cost of living increase under the EAJA to establish two things: (1) that the cost of living in the region has indeed increased to the degree of his requested adjustment, and (2) that his

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attorney’s costs of providing legal services have increased in a manner that tends to show that
inflation has indeed raised those costs.”) (emphasis added).4
The Court recognizes that “a fee of $125” for these types of legal services “seems awfully low.” Mathews-Sheets, 653 F.3d at 564. Nevertheless, the Court still must reject Mr. Hooker’s requested hourly rate, as the proffered justification for the rate left the Court with no information as to “the particular circumstances” of his counsel.5 Id. As the Seventh Circuit explained, “Inflation affects different markets, and different costs in the same market, in different
ways.” Id. at 563. Examples of this abound: “Suppose inflation had not affected the wages [an
attorney] pays h[er] clerical employees, or had been offset by advances in law-office technology
or changes in the standards and procedures of the Social Security Administration that made it
cheaper to litigate claims for disability benefits.” Id. at 564. Without such particularized information, the Court is left to speculate regarding the effect, if any, of inflation on Mr. Hooker’s
counsel’s practice.
4

The Court notes that, not only did Mr. Hooker not make the particularized showing required,
but the affidavits provided were not from attorneys primarily practicing in the relevant geographic area—namely, Indianapolis. Of the three attorney affidavits Mr. Hooker submitted, none of
the attorneys purport to primarily practice in Indianapolis, or even Indiana. [See dkts. 21-1; 212; 21-3.] Because this evidence is not directed toward the relevant legal market, it too fails to
advance Mr. Hooker’s position. See Mathews-Sheets, 653 F.3d at 563 (“Inflation affects different markets, and different costs in the same market, in different ways.”); Hart, 2012 WL
2577515, at *2 (“[M]arket rates may vary greatly between cities such as Chicago, Indianapolis
and Milwaukee.”); see also Thompson, 2013 WL 3228555, at *1; Mireles, 2012 WL 4853065, at
*3.
5

In his reply brief, Mr. Hooker notes that due to the “contingency nature of Social Security Disability appeals and the risk involved, Plaintiff’s attorney would have to reevaluate the business
decision of taking federal Social Security Disability appeals if enhanced fees were not awarded,”
and that Mr. Hooker “specifically sought out this attorney because he knew that she performed
federal court appeals.” [Dkt. 21 at 3.] While these assertions certainly relate to Mr. Hooker’s
attorney’s particular circumstances, they do not relate to the relevant circumstances—namely,
those related to how inflation has impacted his attorney’s practice and fees. Notably, as to the
expressed business concern, the Court’s denial of the increased rate in this case is just that; in
future cases Mr. Hooker’s counsel could receive the requested rate should the showing mandated
by the Seventh Circuit be made.
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This required showing is not an exercise in trivialities, but a recognition that there is no
“entitlement to an inflation adjustment.” Id. at 563 (emphasis in original). A showing other than
one explicitly tied to the individual circumstances of the attorney before the Court would permit
a pro forma showing regarding inflation, such as the one made here, to suffice, which would essentially create the very entitlement to an inflation adjustment rejected by the Seventh Circuit.
Accordingly, because Mr. Hooker did not carry his burden to demonstrate entitlement to
an inflation-adjusted hourly rate in this case, the Court will calculate the fee award using the presumptive ceiling of $125 per hour.6
B.

Number of Hours

Mr. Hooker requested compensation for 18.5 hours of attorney time in his opening brief.
[Dkt. 19-1 at 2.] The Commissioner did not dispute that compensation for 18.5 hours is appropriate. [Dkt. 20.] In his reply brief, however, Mr. Hooker requests compensation for an additional 5.5 hours for time spent drafting his reply brief. [Dkt. 21 at 3.]
The Court declines to award Mr. Hooker’s counsel compensation for the additional 5.5
hours of time spent drafting the reply brief. As the Court explained above, the substance of the
reply brief could and should have been included in the initial brief, and the Court was entitled to
deem those arguments forfeited had it so desired. Mr. Hooker’s counsel should not be compensated for forfeited arguments, especially when the forfeiture was a direct result of Mr. Hooker’s

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The Court recognizes that other claimants in this District have been given another chance to
provide hourly-rate evidence in accordance with Mathews-Sheets when their initial motion and
evidence is insufficient. See, e.g., Orr, 2013 WL 1840471, at 3; Hart, 2012 WL 2577515, at *2.
But given Mr. Hooker’s inappropriate briefing strategy and the abundance of case law interpreting and applying Mathews-Sheets, much of which Mr. Hooker cited in his reply brief, the Court
believes that Mr. Hooker’s failure to make the required showing does not warrant a second
chance. Moreover, such an additional chance would really be a third, given that, in her response
brief, the Commissioner directed Mr. Hooker to Mathews-Sheets, yet Mr. Hooker failed to either
cite it or alone comply with it in reply.
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wait-and-see approach to briefing the hourly rate issue, an issue in which Mr. Hooker bears the
burden. See Mathews-Sheets, 653 F.3d at 562.
Despite Mr. Hooker’s position to the contrary, efficiency is more often than not maximized when the party bearing the burden of proof fronts the evidence and arguments necessary to
prevail in his or her opening brief. If claimants such as Mr. Hooker seek an increased hourly
rate, they “should include this specific information in [their] initial petition which may eliminate
the need for the Commissioner to file a response in opposition to the EAJA fee.” Cummings,
2013 WL 1840410, at *2. But even in situations such as this where the Commissioner desires to
contest the claimant’s showing, if the claimant properly fronts his or her arguments and evidence
in the opening brief, the Commissioner is given a full opportunity to respond to them in her response brief. If, as here, the claimant waits until the reply brief to make the showing required by
Mathews-Sheets, the Court is either left without an adequate response from the Commissioner or
must permit the filing of a surreply. Neither situation lends itself to the efficient disposition of
EAJA motions.
For these reasons, the Court declines to award Mr. Hooker’s attorney compensation for
the hours spent drafting a reply brief made almost entirely of arguments that could have and
should have been raised in the opening brief. Accordingly, compensation is appropriate only for
the initially requested 18.5 hours of attorney work.
C.

Conclusion

For all the reasons stated, Mr. Hooker’s Motion for Attorney’s Fees under the EAJA is
GRANTED IN PART in accordance with this opinion. [Dkt. 19.] Fees are awarded for 18.5
hours of attorney work at a rate of $125 per hour, which results in a fee award of $2,312.50.
That award is payable to Mr. Hooker, subject to any outstanding federal debts. If Mr. Hooker

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does not have any outstanding federal debts, however, the Commissioner should honor his assignment of the EAJA award, [dkt. 19-3], and direct the award to his counsel.

11/20/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Jonelle L. Redelman
REDELMAN LAW
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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