United States District Court, N.D. Indiana, Hammond Division
PEIR A. PARKER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on a Plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act [DE
31], filed by Plaintiff on November 17, 2016.
August 15, 2016, Plaintiff filed a Complaint with this Court
seeking review of the Commissioner's decision denying her
claim for disability insurance and supplemental security
income benefits. On February 11, 2016, Plaintiff filed an
opening brief outlining her arguments for remand. On August
22, 2016, the Court issued an Opinion and Order remanding
this matter for further proceedings and judgment thereon was
entered. Under Rule 4(a)(1)(B) of the Federal Rules of
Appellate Procedure, the parties had 60 days in which to file
an appeal. Neither party filed an appeal.
November 17, 2016, Plaintiff filed the instant Motion for
Attorney's Fees under the Equal Access to Justice Act
(“EAJA”). The Commissioner filed a response on
December 1, 2016, and on December 6, 2016, Plaintiff field a
reply, including a supplemental request for fees incurred in
drafting the reply.
instant Motion, Plaintiff attorneys' fees for 85.7 hours
of work at a rate of $190.20 per hour, and 1.7 hours of legal
staff fees at $95.00 per hour, for a total of $16, 461.84 The
Commissioner objects, arguing that Plaintiff failed to
justify the rate requested and failed to show that certain
billed hours were reasonably expended.
Equal Access to Justice Act provides that a court shall award
attorney fees to a “prevailing party” in a civil
action against the United States that is submitted within
thirty days of final judgment “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. § 2412(d)(1); see United
States v. Hallmark Const. Co., 200 F.3d 1076, 1078-79
(7th Cir. 2000) (setting forth the elements of §
2412(d)(1)). Pursuant to 28 U.S.C. § 2412(d)(1)(B), a
fee application must be filed within thirty days of a
court's final judgment and must satisfy the following
requirements: (1) a showing that the applicant is a
“prevailing party;” (2) a showing that the
applicant is “eligible to receive an award;” (3)
a showing of “the amount sought, including an itemized
statement from any attorney or expert witness representing or
appearing on behalf of the party stating the actual time
expended and the rate at which fees and other expenses were
computed;” and (4) an “alleg[ation] that the
position of the [Commissioner] was not substantially
justified.” 28 U.S.C. § 2412(d)(1)(B); see
also Scarborough v. Principi, 541 U.S. 401, 405 (2004);
Hallmark Constr., 200 F.3d at 1078-79.
obtaining a remand, Plaintiff is considered a
“prevailing party.” Bassett v. Astrue,
641 F.3d 857, 859 (7th Cir. 2011). Further, there is no
dispute that Plaintiff's net worth does not exceed two
million dollars. See 28 U.S.C. § 2412(d)(2)(B).
The Commissioner does not argue that her position was
substantially justified. See 28 U.S.C. §
2412(d)(1)(B). The Commissioner's sole objection is to
the amount of fees requested. Therefore, the only dispute is
whether Plaintiff has met her burden of proving that both the
hourly rate requested and the number of hours claimed are
requests payment for 85.7 attorney hours at $190.20 per hour
and 1.7 hours of legal assistant time at $95.00 per hour.
Plaintiff includes affidavits of attorneys who practice in
similar areas of law and charge between $250 and $550 per
hour, and explains that the statutory EAJA rate increased by
inflation amounts to $190.20, the amount he is requesting.
EAJA provides that an award of attorney's fees
“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 or a special factor . . . justifies a higher
fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The Seventh
Circuit Court of Appeals has interpreted this language to
mean that an attorney is not “automatic[ally]
entitl[ed] to fee enhancements” or adjustments for
inflation. Sprinkle v. Colvin, 777 F.3d 421, 428
(7th Cir. 2015). Rather, the EAJA's language regarding
the cost of living “reflects an assumption that general
measures like the [consumer price index] will provide a
reasonably accurate measure of the need for an inflation
adjustment in most cases.” Id. For example, a
plaintiff may show the effect of inflation on her
attorney's abilities to provide adequate legal services
by submitting “evidence of his typical hourly rate, how
[her] operating costs have been affected by inflation, what
competent lawyers in the relevant geographic area charge, or
that no qualified attorney would provide representation in
comparable cases at the statutory rate.” Walton v.
Colvin, No. 1:12-CV-688, 2013 WL 1438103, at *4 (S.D.
Ind. Apr. 9, 2013). The decision to set an hourly rate at the
national or regional prevailing rate is left to the
discretion of the district court. Sprinkle, 777 F.3d
at 428, n2.
Commissioner argues that the Court should apply a cost of
living value for the midwest urban area to obtain a value of
$184.00 for January 2016, rather than the $190.20 requested,
which reflects the national average rate of inflation.
Plaintiff points out that the Commissioner does not cite any
cases from the Northern District of Indiana that apply the
regional CPI, and argues that its proposed rate is
appropriate. The Court concludes that the affidavits provided
by Plaintiff's attorney, which the Commissioner does not
challenge, “are more than sufficient evidence”
that the hourly rate he requests is in line with those
prevailing in the community for similar services by lawyers
of comparable skill and experience. Sprinkle, 777
F.3d at 428. Accordingly, the Court will not reduce
Plaintiff's requested hourly rate.