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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. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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