United States District Court, S.D. Indiana, Terre Haute Division
ORDER ON JOINT MOTION FOR ATTORNEY'S FEES
PURSUANT TO EQUAL ACCESS TO JUSTICE ACT
J. Disnmore, United State Magistrate Judge.
matter comes before the Court on the parties' Joint
Motion for Attorney's Fees Pursuant to the Equal
Access to Justice Act. [Dkt. 21]. For the following
reasons, parties' Motion is GRANTED.
16, 2017, Plaintiff filed her initial brief in support of her
motion to reverse the ALJ's unfavorable finding and
remand for further proceedings. [Dkt. 16.] On July 10, 2017,
the parties filed a joint motion to remand the case [Dkt.
18], which the Court granted. [Dkt. 19.] Final judgment was
entered on July 12, 2017. [Dkt. 20.] The parties filed this
Motion on August 8, 2017, indicating the parties had agreed
to an EAJA award of attorney fees and costs in the amount of
$8, 056.00 [Dkt. 21.] On August 10, 2017, the Court entered
an Order to Show Cause directing Plaintiff to provide the
appropriate documentation to allow the Court to evaluate the
fee award for reasonableness. [Dkt. 22.] Plaintiff responded
to the Order with a brief and an itemized statement of actual
time expended and the rate at which fees were computed. [Dkt.
to the Equal Access to Justice Act (“EAJA”),
“a court shall award to a prevailing party other than
the United States fees and other expenses . . . incurred by
that party in any civil action . . . brought by or against
the United States.” 28 U.S.C. § 2412(d)(1)(A). In
order to succeed in a Petition for EAJA fees, the movant
must, “within thirty days of final judgment in the
action, ” file her application (1) showing that she is
a “prevailing party, ” (2) providing the Court
with an itemized statement that represents the computation of
the fees requested, and (3) alleging that the position taken
by the United States was “not substantially
justified.” 28 U.S.C. § 2412(d)(1)(B).
Additionally, the Court may, in its discretion, reduce or
deny the award of fees and expenses if the prevailing party
“engaged in conduct which unduly and unreasonably
protracted the final resolution of the matter in
controversy” during the course of the proceedings. 28
U.S.C. § 2412(d)(1)(C).
the Court must determine whether Plaintiff's Motion was
timely filed. Section 2412(d)(1)(b) of the EAJA states that
an application for fees and expenses must be filed
“within thirty days of final judgment in the
action.” The Supreme Court has clarified that the
“30-day EAJA clock begins to run after the time to
appeal that ‘final judgment' has expired, ”
which in this case is 60 days. Melkonyan v.
Sullivan, 501 U.S. 89, 96 (1991). The Court entered
final judgment on July 12, 2017. [Dkt. 19.] Thus,
Plaintiff's August 11, 2017 petition for attorney fees
was timely filed. [Dkt. 21.]
Response to the Order to Show Cause, Plaintiff contends she
meets the “prevailing party” requirement of the
EAJA pursuant to the standard set forth by the United States
Supreme Court in Shalala v. Schaefer. [Dkt. 23 at
3.] In Shalala, the Supreme Court confirmed that a
Plaintiff whose complaint is remanded to an administrative
law judge for further consideration qualifies as a
“prevailing party” under section 2412(d)(1)(B) of
the EAJA. 509 U.S. 292, 300 (1993). Because the Court in this
matter remanded Plaintiff's case to an administrative law
judge for such further consideration, Plaintiff indeed meets
the prevailing party requirement of the EAJA.
the Commissioner bears the burden of proving that her
pre-litigation conduct, including the ALJ's decision
itself, and her litigation position were substantially
justified. See Stewart v. Astrue, 561 F.3d 679, 683
(7th Cir. 2009). In the matter before the Court, the
Commissioner agreed to remand thereby electing to not carry
her burden of proving that her position was substantially
justified. Therefore, Plaintiff meets the EAJA's
threshold requirement of asserting that the
Commissioner's position in this matter was not
Plaintiff asserts the fees requested are reasonable pursuant
to the terms of the EAJA. [Dkt. 23 at 5-10.] As a threshold
requirement, 28 U.S.C. § 2412(d)(1)(B) of the EAJA
requires Plaintiff to submit “an itemized statement
from any attorney or expert witness representing or appearing
in [sic] behalf of the party stating the actual time expended
and the rate at which fees and other expenses were
computed.” Here, Plaintiff attached an itemized
statement as an exhibit to her Response to Order to Show
Cause that tracks the hours worked by Adriana de la
Torre and Carina de la Torre, the attorneys on this matter.
[Dkt. 23-1.] Additionally, Plaintiff makes a representation
of the reasonable rate of computation, as required by the
EAJA. Id. Thus, Plaintiff has met the threshold
requirement of presenting the Court with both the hours
expended by her attorney on the matter and the rate used to
compute the total fees sought.
Plaintiff has met the burden of presentation regarding the
amount of fees sought, the Court must determine whether such
fees are reasonable pursuant to the EAJA. A
reasonable EAJA fee is calculated under the lodestar method
by multiplying a reasonable number of hours expended by a
reasonable hourly rate. Astrue v. Ratliff, 560 U.S.
586, 602 (2010). Although the hourly rate is statutorily
capped at $125.00 per hour, the language additionally permits
that the Court may allow for “an increase in the cost
of living” to justify a higher hourly rate. 28 U.S.C.
§ 2412(d)(2)(A). In order to prove that such an increase
is justified, the Seventh Circuit recently held that
“an EAJA claimant may rely on a general and readily
available measure of inflation such as the Consumer Price
Index, as well as proof that the requested rate does not
exceed the prevailing market rate in the community for
similar services by lawyers of comparable skill and
experience.” Sprinkle v. Colvin, 777 F.3d 421,
423 (7th Cir. 2015). Reliance solely on a readily available
measure of inflation is not sufficient, as an
inflation-adjusted rate might result in a rate higher than
the prevailing market rate in the community for comparable
legal services, creating a windfall, which is to be avoided.
Id. at 428-29.
Plaintiff asserts that Consumer Price Index data from nearby
comparable markets demonstrates that the prevailing hourly
rate in April 2017 (when the bulk of the work was completed)
was $189.26 for the Midwest urban market and $196.31 for the
National market. [Dkt. 23 at 6.] Plaintiff asserts the
effective agreed-upon hourly rate of $190.00 is consistent
with the inflation-adjusted rate, the depth of counsels'
experience, the prevailing market rate in the community by
lawyers of comparable skills and experience, and the rate
approved in other similar disability cases in this district.
Id. See Gibbs v. Colvin, No.
1:15-cv-01860-SEB-MJD at Dkt. 23; see also Bledsoe v.
Colvin, 1:14-cv-00011-SEB-MJD at Dkt. 26.
the Court must turn to the issue of whether the number of
hours reportedly worked by counsel appears sufficiently
reasonable. The Seventh Circuit commands that an attorney use
the same “billing judgment” with the Court that
he or she would implement when presenting a client with the
legal bill. Spegon v. Catholic Bishop of Chicago,
175 F.3d 544, 552 (7th Cir. 1999). As explained by the
Supreme Court, “[c]ounsel for the prevailing party
should make a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically
is obligated to exclude such hours from his fee
submission.” Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). Counsel reports they worked a combined 42.40
hours on this case. [Dkt. 23-1.] The Court has reviewed the
itemized time records and finds counsel employed proper
“billing judgment” with regard to their work on
the Court is not aware of any “conduct which unduly and
unreasonably protracted the final resolution of the matter in
controversy” having taken place in this matter on
behalf of Plaintiff or her counsel. Therefore, the Court will
not reduce or deny an ...