United States District Court, S.D. Indiana, New Albany Division
ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S
Baker United States Magistrate Judge
Beth Staley's petition for attorney's fees under the
Equal Access to Justice Act seeks an award of $13, 718 for
72.2 hours calculated at an hourly rate of $190. The
Commissioner opposes Staley's petition, arguing the
requested award is unjust. The Commissioner argues the Court
should reduce the requested EAJA award by 10.3 hours, reduce
the hourly rate by $4.10, and pay the award directly to
Staley, not to her counsel. Staley requested oral argument
[Filing No. 46], but this is not necessary.
Staley's EAJA fee request is reasonable, and for reasons
explained below, the Court grants Staley's EAJA fee
request. [Filing No. 39.]
Staley's attorney's time was reasonably
Commissioner argues that 10.3 hours of the 72.2 hours of
attorney time billed is excessive. The Commissioner contends
that despite the routine nature of this case, Staley's
attorney billed for abnormally large amounts of time. The
Commissioner takes issue with three aspects of time expended
by Staley's attorney: 22.6 hours to review the record and
prepare the statement of facts, 25.3 hours to research and
draft the opening brief, and 0.3 hours to prepare a motion
for an extension of time. The Commissioner asks that the
Court reduce the number of hours spent on the briefs by 10
hours and to deny the 0.3 hours spent on the extension.
Commissioner argues the Court should cut 10 hours off
Staley's time billed in this case because hours over 60
are not permissible. For this proposition, the Commissioner
relies on Schulten v. Astrue, No. 08 C 1181, 2010 WL
2135474, at *6 (N.D. Ill. May 28, 2010), in which the court
found that 40-60 hours falls within the “permissible
range” of hours of attorney work. However, the
Schulten court explained its finding does not
suggest an award is reasonable (or unreasonable) simply
because it is within this range. Id.
Schulten does not stand for cutting off Staley's
attorney's fees at 60 hours. To illustrate
Schulten's latter point, Staley points to
Buis v. Colvin, No. 1:13-CV-00878-RLY, 2015 WL
6393937, at *9 (S.D. Ind. Oct. 22, 2015), in which the court
found that 105.5 hours, well beyond 60 hours, of attorney
time expended was reasonable under EAJA. In Buis,
the court approved 45.05 hours for the opening brief and 25
hours for the reply brief, which it found were reasonable.
Id. at *7-8.
the Court will not reflexively cut off the hours billed in
this case at 60 hours. The Commissioner makes much of the
fact that record on appeal was only 781 pages, with
only approximately 550 pages of medical evidence.
But as Staley contends, 781 pages is not a small record.
See e.g., Townsend v. Colvin, No.
2:12-CV-516-PRC, 2014 WL 6617641, at *2 (N.D. Ind. Nov. 18,
2014) (“a 653-page administrative record is by no means
short”). “The difficulty with social security
appeals lies … in the application of the law to the
facts.” Id. Staley agrees her attorney spent
significant time working on the facts and going through the
medical records. This time was critical to her success,
because “in order to prevail, the Plaintiff must bring
the evidence to the Court's attention.”
Id. In fact, Staley was allowed to file an oversized
brief of 52 pages, of which, 24 pages consisted of the facts
and procedural history. Staley set forth a meaningful context
to examine the issues set forth in her oversized brief.
Staley raised four issues and the Commissioner fails to
identify any factual or procedural background that Staley
should have omitted. See Hochgesang v. Colvin,
No. 1:14-CV-2044-DKL-RLY, 2015 WL 7288628, at *3 (S.D.
Ind. Nov. 16, 2015) (“Defendant has failed to identify
any weak argument that she thinks should not have been
made.”). A 60-hour ceiling does not exist, and the
hours billed for reviewing the record and drafting the
factual and procedural background are reasonable.
the 0.3 hours billed for the motion for an extension of time,
the Court also finds it is reasonable. The Commissioner
argues that courts have disallowed billing the Commissioner
for time spent preparing a motion for extension of time.
Holland v. Barnhart, No. 02 C 8398, 2004 WL 419871,
at *2 (N.D. Ill. Feb. 3, 2004). However, courts have likewise
approved fees for preparing a motion for an extension of time
over the Commissioner's objection. DeHart v. Colvin,
No. 1:12-CV-00861-MJD, 2013 WL 6730736, at *2 (S.D. Ind.
Dec. 19, 2013). The results from case law differ
because the amount of the EAJA fee award is a matter of the
Court's discretion. Buis, 2015 WL 6393937, at
*5. In this case, Staley requested only one extension of time
and spent only 18 minutes to do so. The Commissioner takes no
issue with the actual time spent on the motion. Compared to
the 72.2 hours Staley's attorney billed for the case,
this time is reasonably included in the EAJA fee award.
Court thus finds that counsel for Staley expended a
reasonable amount of time in this case. The discussion of
facts and procedural background in the briefing was
reasonable, as was the single request for an extension of
time. Thus, Staley's EAJA fee award includes all 72.2
Staley's attorney's billing rate should not be
Commissioner argues that Staley's attorney's hourly
rate of $190 should be reduced by $4.10 to more accurately
reflect the prevailing market rate. The Commissioner contends
that this reduction is necessary so that Staley's
attorney's hourly rate is based on the midwest market,
rather than the national market. However, the Commissioner
admittedly points out that courts have used both national and
regional markets, “without clear preference for
either.” Seabron v. Astrue, 11-C-1078,
2012 WL 1985681, at *4 (N.D. Ill. June 6, 2012). The
Commissioner argues Staley nevertheless presented no evidence
that fees based on the national market is more appropriate.
reply, Staley points to Smith v. Colvin, No.
1:12-CV-320, 2013 WL 6148100, at *2 (N.D. Ind. Nov. 22,
2013), in which the Commissioner made a nearly identical
argument-that fees should be calculated based on the
“Midwest Urban” average, rather than the
“All Urban” average, which was a $3.83
difference. In Smith, the court refused to reduce
the requested hourly rate, finding it was unwarranted because
the Seventh Circuit has no preference, other attorneys use
the same calculation, and the amount was relatively nominal.
Id. Smith is directly on point. Staley
submits the affidavit of an Indianapolis attorney practicing
Social Security law, which states that $190 is “below
the hourly rates charged by Indianapolis attorneys of
comparable skill, experience, and reputation, ” but it
is an amount consistent with rates under EAJA. [Filing
No. 39-3.] Moreover, the nominal difference of $4.10
does not make the requested rate of $190 stand out as
unreasonable. Thus, Staley's EAJA award is based on the
hourly rate of $190.
EAJA fees should be paid directly to Staley's
asks the Court to make any EAJA fee award directly payable to
her attorneys because Staley assigned any attorney fees and
costs awarded to her attorneys. [Filing No. 39-4.]
However, the Commissioner requests the Court to instead award
fees directly to Staley “with the contingency that if
counsel for Defendant can verify that Plaintiff owes no
pre-existing debt subject to offset, the Commissioner will
direct that the award be made payable to Plaintiff's
attorney.” [Filing No. 41, at ECF p. 7
type of contingency requested by the Commissioner is
reasonable, as it is essentially a recitation of case law.
“[I]f there is an assignment, the only ground for the
district court's insisting on making the award to the
plaintiff is that the plaintiff has debts that may be prior
to what she owes her lawyer.” Mathews-Sheets v.
Astrue, 653 F.3d 560, 565 (7th Cir. 2011). The
Commissioner seeks to suspend the decision of whether to
award EAJA fees directly to counsel because she has not yet
checked the status of any prior debts owed by Staley.
However, the Commissioner provides no evidence that Staley
has any prior debts. The Commissioner does not indicate when
an inquiry of whether Staley has prior debts might happen.
The approaches taken by the courts when fees are assigned and
prior debts are unknown have not always been
consistent. Seemingly, the most practical way to
address this is to provide the Commissioner 70 days to
investigate whether a debt is owed, issue a check, or to file
an appeal. See e.g., Ledbetter v. Colvin, No.
1:13-cv-01173-SEB-TAB, 2015 WL 1885105, at *2 (Apr. 23, 2015)
(providing the Commissioner 70 ...