UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

KEVIN W. ADAMS, )

)

 Plaintiff, )

)

 v. ) CIVIL NO. 3:14cv1680

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

)

 Defendant. )

OPINION AND ORDER

This matter is before the court on a “Motion for Attorney Fees Under the Equal Access to

Justice Act”, filed by the Plaintiff on March 5, 2015. The Defendant filed her response on

March 18, 2015, indicating no objection to Plaintiff’s motion.

Discussion

The Equal Access to Justice Act (“EAJA”) provides, in relevant part, that

Except as otherwise specifically provided by statute, a court shall award to a

prevailing party other than the United States fees and other expenses, in addition

to any costs awarded pursuant to subsection (a), incurred by that party in any civil

action (other than cases sounding in tort), including proceedings for judicial

review of agency action, brought by or against the United States in any court

having jurisdiction of that action, unless the court finds that the position of the

United States was substantially justified or that special circumstances make an

award unjust.

28 U.S.C. Section 2412(d)(1)(A). See also Golembiewski v. Barnhart, 382 F.3d 721, 723-724

(7th Cir. 2004); Stewart v. Astrue, 561 F.3d 679, 682 (7th Cir. 2009).

The substantial justification standard requires that the Commissioner show that its

position was grounded in “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable

basis in law for the theory propounded; and (3) a reasonable connection between the facts

alleged and the legal theory advanced.” United States v. Hallmark Constr. Co., 200 F.3d 1076,
1080 (7th Cir. 2000) (citation and internal quotation marks omitted); see also Stewart v. Astrue,

561 F.3d 679, 683 (7th Cir. 2009); Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir. 2006).

The Commissioner bears the burden of establishing that his position was substantially justified.

Stewart, 561 F.3d at 683; Cunningham, 440 F.3d at 863; Golembiewski, 382 F.3d at 724.

With respect to precisely what the Commissioner must prove to have been substantially

justified, in the 1985 amendments to the EAJA, Congress expressly defined the “position of the

United States” to mean both its position in the civil action and “the action or failure to act by the

agency upon which the civil action is based...” 28 U.S.C. Section 2412(d)(2)(D). Thus, the

entire history of the Commissioner’s position in this matter should be considered. When it is, it

emerges -- at the very least -- as unreasonable as Defendant conceded that her final decision

could not be defended and remand was necessary for further proceedings.

Because the Commissioner’s position was not substantially justified, Plaintiff is entitled

to an award of attorney fees. Under the EAJA, fees may not be awarded at a rate higher than

$125 per hour unless the Court determines that a higher fee is justified by an increase in the cost

of living or a special factor (such as the limited availability of qualified attorneys for the

proceedings involved). 28 U.S.C. Section 2412(d)(2)(A). It is submitted that a higher fee is

justified in this case.

As averred by Plaintiff's counsel in his Affirmation, the cost of living -- as reflected in

the Consumer Price Index for the Midwest urban region -- increased from 151.7 in March 1996

(when the EAJA, and its $125 per hour provision, became effective) to 226.913 in September

2014, when the majority of the work was performed before this Court. The increase applied to

the $125 per hour limit on EAJA fees set in March 1996 amounts to an adjusted hourly rate of

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$186.98 per hour for the work done before the District Court, approximately a 50% increase

from the rate of $125.

In addition, as noted in Plaintiff’s Affirmation and supplemental Affidavit, the cost of

litigating a claim by counsel’s office has increased by approximately 75% from 1996 to 2013.

Therefore, the requested increase in the adjusted hourly rate by counsel in this case of 50% based

on the CPI is eminently reasonable. The Seventh Circuit recently held in Sprinkle v. Colvin, - --

F.3d----, 2015 WL 301182 (7th Cir. Jan. 23, 2015) that the CPI suffices as proof of an increased

cost of living along with a single sworn affidavit from a claimant’s attorney setting forth the

prevailing market rate. Sprinkle at *7 overruling in part Matthew-Sheets v. Astrue, 653 F.3d 560

(7th Cir. 2011). Plaintiff has provided more than sufficient proof regarding the prevailing market

rates and the increased costs of doing business for Plaintiff’s counsel, which was required under

the higher standard in Matthew-Sheets.

As noted at the outset, the Commissioner has no objection to this motion. For all the

foregoing reasons, the motion will be granted.

Conclusion

On the basis of the foregoing, Plaintiff’s motion for attorney fees, under the Equal Access

to Justice Act, is hereby GRANTED.

 

 Entered: April 20, 2015.

 s/ William C. Lee 

 William C. Lee, Judge

 United States District Court

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