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Lawyer can argue for cost-of-living adjustment for increased fees

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The 7th Circuit Court of Appeals has decided that an attorney that successfully represented a client in a Social Security disability benefits suit should be allowed to make a request for a cost-of-living adjustment that would exceed the maximum $125 per hour that can be awarded under the Equal Access to Justice Act.

Jayne A. Mathews-Sheets’ attorney put in a request under the act for $25,200 in attorney fees. He claimed somewhere between 112-116 hours worked on the case at a rate of $225 an hour. U.S. Judge William Lawrence of the Southern District of Indiana thought the number of hours and amount asked for were excessive, so he cut the hours and the amount the unnamed attorney could request to 53 hours at $125 per hour, the presumptive ceiling under the Equal Access to Justice Act. He awarded $6,625 in fees.

The act says 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 proceeding involved, justifies a higher fee.”

The attorney claimed $225 was the prevailing market rate for his services but didn’t provide specifics as to how he came to that number. In his reply brief, he argued for a slightly lower amount. The attorney divided the Consumer Price Index for 2009, when he did most of his work on the case, by the CPI for 1996 when the statutory rate was raised to $125, and multiplied the quotient by $125 to come up with $170 due to inflation.

Judge Lawrence didn’t reject the request for the higher fee based on the weakness of the attorney’s argument, noted 7th Circuit Judge Richard Posner, but instead said the information submitted in the reply brief had been submitted too late. The federal appellate court found that the judge’s stated reason for rejecting the enhancement was invalid. It wasn’t improper for the attorney to request the cost-of-living increase for the first time in his reply brief.

The judges thought that a fee of $125 for legal services rendered in 2009 in a Social Security disability appeal seemed “awfully low,” and ordered the lower court to take another look at the attorney’s request. But that is all that is allowed on remand – the attorney mentioned nothing other than inflation that could justify a fee award above the statutory presumptive ceiling, wrote Judge Posner in Jayne A. Mathews-Sheets v. Michael J. Astrue, Commissioner of Social Security, No. 10-3746.

“And so on remand the plaintiff’s lawyer will have to show that without a cost of living increase that would bring the fee award up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of social security disability benefits could not be found in the relevant geographical area to handle such a case,” he wrote.
 

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  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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