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. I commend Joe for standing up to this tyrant attorney! You ask why? Well I’m one of David Steele victims. I was in desperate need of legal help to protect my child, David saw an opportunity, and he demanded I pay him $3000. Cash. As I received motions and orders from court he did nothing! After weeks of emails asking him to address the legal issues, he responded by saying he was “on vacation “and I should be so lucky to have “my attorney” reply. Finally after lie on top of lie I asked for a full refund, which he refused. He then sent me “bills” for things he never did, such as, his appearance in the case and later claimed he withdrew. He never filed one document / motion for my case! When I finally demanded he refund my money he then turn to threats which scared my family for our lives. It seem unreal we couldn’t believe this guy. I am now over $100,000 in debt digging out of the legal mess he caused my family. Later I was finally able to hire another law office. I met Joe and we worked diligently on my case. I soon learn Joe had a passion for helping people. As anyone who has been through a legal battle it is exhausting. Joe was always more than happy to help or address an issue. Joe was knowledgeable about all my concerns at the same time he was able to reduce the stress and anxieties of my case. He would stay late and come in early, he always went the extra mile to help in any way he could. I can only imagine what Joe and his family has been through, my prayers go out to him and all the victims.

  2. Steele did more than what is listed too. He purposely sought out to ruin me, calling potential employers and then lied about me alleging all kinds of things including kidnapping. None of his allegations were true. If you are in need of an ethical and very knowledgeable family law paralegal, perhaps someone could post their contact information. Ethics cannot be purchased, either your paralegal has them or they do not.

  3. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  4. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  5. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise