United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING PETITION FOR ATTORNEYS'
Jane Magnus-Stinson, Chief Judge.
Staci Harrington moves for an award of attorneys' fees
pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d).
[Filing No. 28.] Ms. Harrington claims that she has
satisfied all the elements required under the EAJA: she was
the prevailing party, the Government's position was not
substantially justified, and no special circumstances make an
award unjust. See 28 U.S.C. § 2412(d)(1)(A).
[Filing No. 29 at 2-3.] According to Ms. Harrington,
her counsel devoted a total of 71 hours to this litigation,
which she claims is a reasonable number of hours, and charged
a reasonable hourly rate of $190.00. [Filing No. 29 at
3.] The total amount of attorneys' fees that she
requests is $13, 490.00. [Filing No. 33 at 9.] In
response, the Commissioner challenges Ms. Harrington's
fee request, claiming the number of hours she requests is
unreasonable and that she requests an enhanced hourly rate.
[Filing No. 32 at 1.] The Court will address the
issues that the parties dispute.
Harrington requests an hourly rate of $190.00 per hour.
[Filing No. 29 at 7.] She argues that since there is
no Consumer Price Index (“CPI”) for
Indianapolis, she looked to other similar markets and noted
that the Midwest urban market is $182.07, the Chicago market
is $183.41, and the National market is $193.18. [Filing
No. 28-2; Filing No. 29 at 6.] She claims that
the National market CPI is the most relevant to her case.
[Filing No. 29 at 6.] Ms. Harrington asserts that
she provided a sworn affidavit regarding the prevailing
market rate from Andrew P. Sheff, an attorney with 38 years
of experience representing similar claimants, who claims that
an hourly rate of $190.00 is reasonable in the Indianapolis
market. [Filing No. 28-3; Filing No. 29 at
6-7.] She also claims that her counsel received approval
for the hourly rate of $190.00 in another disability case.
[Filing No. 29 at 7.]
response, the Commissioner argues that the Court should
reduce the requested hourly rate. [Filing No. 32 at
4.] The Commissioner argues that the CPI for the Midwest
urban market results in an hourly rate of $182.07.
[Filing No. 32 at 5.] The Commissioner concedes,
however, that it is appropriate to apply the rate of
inflation for the region in which the litigation took place.
[Filing No. 32 at 5.]
reply, Ms. Harrington reiterates many of the same arguments
she made in her opening brief. [Filing No. 33 at
2-4.] She claims that the fee that she seeks is
consistent with other district court decisions in this
Circuit, that the National market CPI rate provides a more
accurate calculation, and that the Commissioner's blind
reliance on the Midwest urban market CPI is not warranted.
[Filing No. 33 at 3-4.]
EAJA allows a prevailing party, other than the United States,
to receive attorneys' fees for work performed in
proceedings for judicial review of agency action,
“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)(A). “[A]ttorney 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, such as
the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.” 28
U.S.C. § 2412(d)(2)(A)(ii). “Courts should
generally award the inflation-adjusted rate according to the
CPI, using the date on which the legal services were
performed.” Sprinkle v. Colvin, 777 F.3d 421,
428 (7th Cir. 2015). “[G]eneral measures like the CPI
will provide a reasonably accurate measure of the need for an
inflation adjustment in most cases.” Id.
“[C]laimants must produce evidence that the rate they
request is in line with those prevailing in the community for
similar services by lawyers of comparable skill and
experience.” Id. at 428. While a single sworn
statement from a claimant's attorney that sets forth the
prevailing market rate can be sufficient evidence in some
cases, to avoid the possibility of a windfall, “courts
may not award an inflation-adjusted rate that is higher than
the prevailing market rate in the community for comparable
legal services.” Id. at 429.
Harrington claims that the National market is the most
relevant here, and includes a sworn affidavit from Andrew P.
Sheff, in which he points out that the $190.00 hourly rate is
reasonable for the Indianapolis market. The Court disagrees.
The Midwest urban market most accurately reflects the
prevailing market rate of the legal community, and, as the
Commissioner concedes, it should include the rate of
inflation. Other district courts have agreed with this
conclusion, and evaluated other factors to justify this
reasoning. See Pollard v. Colvin, 2015 WL
846425, at *3 (S.D. Ind. 2015) (finding that plaintiff used
the Midwest urban market CPI and also “attached several
charts displaying the standard hourly billing rates for
attorneys in the Indianapolis-Carmel, Indiana statistical
area, which show that even an attorney with less than two
years of legal experience who charges in the lower quartile
in 2009 charged at a rate of $185.00 per hour . . . . [This
demonstrates that] the requested rate of $185.62 does not
exceed the prevailing market rate.”); Jones v.
Berryhill, No. 1:16-cv-00948-SEB-MJD, Filing No. 24 at
4-5 (“Plaintiff asserts that [the hourly rate of
$184.75 for 2015 was] below the market rate for the same kind
and quality of legal services as performed in this case,
supporting this claim by citing a survey showing the lowest
quartile standard hourly rate for an attorney with less than
two years of experience in the Indianapolis area was
$185/hour. As the attorney in this matter has more than 20
years of experience, the Court finds it is reasonable to
assert the requested hourly rate for work on this
order to incorporate the rate of inflation using the Midwest
urban CPI,  the Court applies the following formula:
the March 1996 CPI value (151.7) is subtracted from the
annual 2016 CPI value for the Midwest urban market
(226.115); that figure is then divided by the March
1996 CPI value (151.7), which calculates the percentage
increase in the cost of living (49.05%). The percentage
increase in the cost of living is then multiplied by the
statutory rate of $125.00, and that figure is then added to
$125.00 to determine the statutory rate that incorporates the
rate of inflation. The statutory rate for 2016, factoring in
inflation, is $186.31. To determine the calculation for Ms.
Harrington's counsel's work done in 2017, the Court
uses the same formula and substitutes the annual value of
2016 - 226.115 - with the April 2017 value of 229.682, since
more hours were spent working on the attorneys' fees
petition during that month. The 2017 hourly rate comes to
$189.26. Accordingly, the Court concludes that the hourly
rate for 2016 is $186.31, and for 2017 is $189.26.
Number of Hours
Harrington claims that her counsel spent a total of 64.1 hours
(not including the hours spent on attorneys' fees
petition) pursuing this civil action, and provides an exhibit
that reflects the summary of the hours worked. [Filing
No. 28-1; Filing No. 29 at 7.] Ms. Harrington
claims that her counsel addressed several complex arguments,
which involved four main arguments and multiple subparts at
nearly all of the five steps of the sequential evaluation
process. [Filing No. 29 at 7-8.] Ms. Harrington also
claims that her counsel submitted an oversized brief as a
result of the complexity of the case, and that they spent an
additional 2.1 hours filing this petition for fees.
[Filing No. 29 at 8.]
response, the Commissioner argues that the number of hours
that Ms. Harrington's counsel request are excessive.
[Filing No. 32 at 2.] The Commissioner argues that
the legal issues are not complex or novel, but instead are
commonly litigated in Social Security cases, and that the
case had an “average size record.” [Filing
No. 32 at 3.] The Commissioner contends that the two
attorneys spent 40.8 hours preparing an opening brief for the
Social Security appeal and 20.5 hours preparing a reply
brief, and that out of that time, counsel spent 9.9 hours
revising the opening brief, and 5.5 hours revising the draft
reply brief. [Filing No. 32 at 3.] The Commissioner
contends that given this, the Court should reduce the total
hours by at least 15 hours. [Filing No. 32 at 3.] In
addition, the Commissioner claims that the hours that Ms.
Harrington seeks are “outside the range of acceptable
fee awards in Social Security cases.” [Filing No.
32 at 3.]
reply, Ms. Harrington claims that her counsel devoted a
reasonable number of hours to working on this case, and that
their request “does not even reflect the full amount of
hours actually incurred by the firm on the underlying
litigation.” [Filing No. 33 at 5.] Ms.
Harrington argues that her counsel obtained excellent results
and that the Administrative Law Judge's
(“ALJ”) errors were numerous and
pervasive. [Filing No. 33 at 5.] She further claims
that the Commissioner seeks an “arbitrary reduction of
15 hours” and that she has not demonstrated that the
number of hours spent by the briefing was unreasonable.
[Filing No. 33 at 6.] She cites to case law that she
claims supports her position, and argues that the case law
that the Commissioner relies on is unpersuasive. [Filing
No. 33 at 6-7.] Ms. Harrington claims that the size of
the record does not equate to the complexity of the legal
issues, and that her counsel were not familiar with her case
since they did not represent her at the administrative level.
[Filing No. 33 at 8.] She also claims that the
issues require “a keen eye for detail in culling the
facts and analyzing them in the context of the appropriate
regulatory framework, ” and reiterates that counsel had
to submit an oversized brief because of the number of errors
that the ALJ committed. [Filing No. 33 at 8.]
party seeking a fee award has the burden of showing that the
fees sought are reasonable. See28 U.S.C. §
2412(d)(1)(B); Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). The Court should exclude from the fee calculation
“hours that were not ‘reasonably expended,
'” such that the “hours that are excessive,
redundant, or otherwise unnecessary” are excluded.