Opinion
No. 99 C 7197
July 19, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff lost before this court, but won a remand in the Court of Appeals. She now petitions for attorneys' fees and costs in the amount of $15,631.85, payable to Barry Schultz, on the ground that the government's position was not substantially justified. We grant the petition.
A district court passing upon a fee petition after it ruled for the government and was reversed is in a somewhat anomalous position. We think it best to focus upon the Court of Appeals evaluation of the government's case, which necessarily had to support the ALJ's opinion. Here the Court of Appeals concluded that the ALJ had made a host of mistakes, which we need not repeat here. Suffice it to say, the appellate court, although it did not decide that petitioner was disabled, did not consider the issue of whether petitioner was entitled to a new hearing a close one. See United States v. Hallmark Construction Co., 200 F.3d 1076, 1079 (7th Cir. 2000); Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995); Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir. 1994). We concur in the analysis of the law and the views expressed by Magistrate Judge Denlow in Smith v. Apfel, 2001 WL 199505 (N.D. Ill. Feb 28, 2001).
The government, alternatively, questions the amount of the fees and the possible recipient. The amount of time expended in this court was modest, almost nominal, some 17.75 hours. The bulk of the work was on appeal, some 85.8 hours, as well as some time respecting the fee dispute. Given the undertaking facing appellant and cognizant of fees approved in other cases, we see no reason to reduce the fees sought. We are aware, as well, that the arrangement between petitioner and her attorney provided for payment directly to the attorney.