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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION AND ORDER
CAROLYN COLVIN, SOCIAL
On January 22, 2013, this court reversed a decision of the Social Security
Commissioner and remanded the application for benefits filed by plaintiff Linda Hoeft
for further consideration of one issue. Hoeft now moves for attorney fees under the Equal
Access for Justice Act, 28 U.S.C. § 2412, arguing that she is entitled to a fee award
because the government's position was not substantially justified, as well as an increased
fee beyond the statutory rate of compensation to account for increases in the cost of
living. The government objects, arguing that Hoeft meets neither the criteria for fees nor
an increase beyond the statutory rate. The court agrees.
A litigant is entitled to attorney fees under the EAJA unless the government fails
to show that its position was "substantially justified or that special circumstances make
an award unjust." 28 U.S.C. § 2412. In this context, substantial justification is not the
same as nonfrivolous, but there is no presumption that fees are to be awarded merely
because the government lost its case. McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.
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1983); Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987). The government must
show that it proceeded upon a reasonable though not necessarily correct basis in fact and
law. Schweiker, 726 F.2d at 316. Put another way, the government's position is
substantially justified when a reasonable person could believe that it is correct. Pierce v.
Underwood, 487 U.S. 552, 566 n.2 ( 1988).
To meet this standard, the government must 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). The government's "position" includes the reasoning and arguments of the
ALJ and the commissioner's subsequent litigation position, 28 U.S.C. § 2412(d)(2)(D);
Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994); see also Jackson v. Chater, 94 F.3d
274, 278 (7th Cir. 1996) (EAJA requires single substantial justification determination
that "simultaneously encompasses and accommodates the entire civil action"). The
burden of proof falls upon the commissioner to show substantial justification. Cummings
v. Sullivan, 950 F.2d 492, 495 (7th Cir. 1991).
Because the ALJ was presented with insufficient evidence on whether Hoeft could
perform any of her past relevant work, plaintiff avers that the ALJ was not substantially
justified in finding that she could perform one of her two past "customer service" jobs
without specifying which one. A review of the order remanding this case reveals that the
court's concern with the ALJ's determination did not include the amount of evidence he
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relied upon in support, but rather his inability to articulate to which of Hoeft's
previously-held, relevant work he referred. For this reason, the court found that:
[b ]ecause the ALJ failed to articulate adequately a logical
bridge between Hoeft's past relevant work and her residual
functional capacity to perform that work at a sedentary level,
this case must be remanded to the Commissioner for
additional findings at step four to be followed, if necessary,
by a step-five finding to determine whether there is other
work that Hoeft can perform in the national economy.
Opinion and Order, pp. 27-28.
As the Seventh Circuit has noted, an ALJ's failure to articulate the basis for his
decision "in no way necessitates a finding that the Secretary's position was not
substantially justified." Stein v. Sullivan, 966 F.2d 317, 319-320 (7th Cir. 1992); see also
Kusilek v. Barnhart, No. 04-310,2005 U.S. Dist. LEXIS 4342, at *14 (W.D. Wis. March
2, 2005). The government's conduct must be treated as a whole and not as "atomized
line-items." Cummings, 950 F.2d at 500. A reasonable person could believe that the
government's position throughout the course of this case was correct. Errors of
articulation are not always cause for remand, and although the government did not
prevail in this suit, its position was still based on reasonable views of the law and the
facts of Hoeft's case. Therefore, the court will decline to award attorney fees to Hoeft.
Upward Departure from Statutory Rate
Not only does Plaintiff claim that she is entitled to attorney fees under 28 U.S.C.
§ 2412, but also that her case meets the criteria necessary for an upward departure of the
statutory rate of compensation. The EAJA provides for "reasonable attorney fees" to be
awarded; however, it also provides a statutory cap for those fees at $125 per hour,
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"unless the court determines that an increase in the cost of living or a special factor, such
as the limited availability of qualified attorneys for the proceedings involved, justifies a
higher fee." 28 U.S.C. § 2412(d)(2)(A). Hoeft does not argue that some "special factor"
necessitates a higher fee, but rather that a cost of living adjustment should be made to
reflect the 41% increase in the Consumer Price Index for the Midwest urban region since
1996, when the current EAJA provision was put into effect.
Referencing the CPI to adjust EAJA fees is common in district courts of the
Seventh Circuit and decisions of other courts can appropriately be used as persuasive
authority here, despite the commissioner's arguments to the contrary. See Samuel v.
Barnhart, 316 F. Supp. 2d 768, 780-81 (E.D. Wis. 2004); Wonders v. Shalala, 822 F.
Supp. 1345, 1346 (E.D. Wis. 1993); Simms v. Astrue, No. 08-00094, 2009 U.S. Dist.
LEXIS 50185, at *22 (N.D. Ind. June 12, 2009); Holland v. Barnhart, No. 02-8398, 2004
U.S. Dist. LEXIS 1364, at* 1 (N.D. Ill. Feb. 3, 2004). Furthermore, the Western District
has also used CPI adjustments in its own opinions. See, e.g., Prochaska v. Barnhart, No. 04-
644, 2007 U.S. Dist. LEXIS 7078, at *29 (W.D. Wis. Jan. 29, 2007).
If the court had decided that attorney fees were appropriate in this case, an
adjustment of the statutory hourly rate may have been appropriate to account for an
increase in the CPI for the relevant geographical region since 1996. I Many of the cases
cited by plaintiff involve social security commissioners who did not contest the proposed
hourly rate of plaintiffs, since it is the court's prerogative to decide whether an upward
I The commissioner's argument that the rising cost of doing business in New York is
irrelevant, although it is credited.
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departure from the statutory amount is warranted. But this discussion is irrelevant where
the court has denied an award of fees altogether.
IT IS ORDERED that plaintiff's motion for an award of attorney fees and
expenses under the Equal Access to Justice Act (dkt. #20) is DENIED.
Entered this 30th day ofJuly, 2013.
BY THE COURT:
WILLIAM M. CONLEY