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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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