United States District Court, N.D. Indiana, Hammond Division
MATTHEW D. CLARK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Application for
Attorneys' Fees Under the Equal Access to Justice Act [DE
28], filed by Plaintiff on April 3, 2017.
October 5, 2015, 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 March 2, 2016, Plaintiff filed an opening
brief outlining her arguments for remand. On January 3, 2017,
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.
April 3, 2017, Plaintiff filed the instant Motion for
Attorney's Fees under the Equal Access to Justice Act
(“EAJA”). The Commissioner filed a response on
April 13, 2017, and on April 19, 2016, Plaintiff field a
reply, including a supplemental request for fees incurred in
drafting the reply.
instant Motion, Plaintiff requests attorneys' fees for
65.2 total attorney hours and 3.44 paralegal hours. The
Commissioner objects, arguing that Plaintiff failed to
justify the rate requested and failed to show that 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 62.7 attorney hours and 3.44 hours of
paralegal time. In his reply, Plaintiff agrees with the
Commissioner that it is appropriate to use the Midwest CPI
rate to determine the appropriate cost of living increase,
resulting in an hourly rate of $183.91, and the Court accepts
this rate as including an appropriate cost of living
adjustment. See 28 U.S.C. § 2412(d)(2)(A)(ii);
Sprinkle v. Colvin, 777 F.3d 421, 428 (7th Cir.
2015). This leads to a fee request of $11, 531.16 in attorney
hours. The Commissioner does not object to the request of
3.44 hours of paralegal work at $100.00 per hour, for a total
Reasonableness of Hours Expended
Commissioner also argues that the number of hours billed,
62.7 hours of attorney time and 3.44 hours of paralegal time,
are not reasonable. The Commissioner argues that the case was
fairly routine and the issues were not complex or unusual,
such that 52 hours to draft and review the opening brief is
excessive. Plaintiff argues that the hours billed in this
case are within the reasonable range of similar cases billed
in the Seventh Circuit, and that this case was particularly
complex because it had already gone through two rounds of
administrative hearings and a previous district court
should exclude from the “fee calculation hours that
were not ‘reasonably expended.'” Hensley
v. Ekerhart, 461 U.S. 424, 434 (1983) (quoting S. Rep.
No. 94-1011, p. 6 (1976)); accord Tchemkou v.
Mukasey, 517 F.3d 506, 510 (7th Cir. 2008). The burden
remains with Plaintiff to prove that the hours were
“reasonably expended.” Hensley, 461 U.S.
at 437. Additionally, “‘[h]ours that are not
properly billed to one's client are also not
properly billed to one's adversary pursuant to
statutory authority.'” Id. at 434 (quoting
Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir.
1980)) (emphasis in original). ...