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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. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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